author: Buchanan, J. Buchanan, J.

text:
    G. L. Brown v. W. Thomas.
    In an action by an endorsee against the maker of a promissory note a judgment by default was con* firmed without proof of the signature of the maker, and the endorser who was payee. Ilclci: that the proper judgment is one remanding the cause for further proceedings and not one of non-suit.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      D. M. Hennen, for plaintiff. Mott & Fraser, for defendant and appellant.
   Buchanan, J.

The defendant has appealed from a judgment confirming a default, rendered against him as maker of a note to the order of Hyde & Oglesby, protested at maturity for non-payment. The plaintiff sues as endorsee. The appellant assigns for errors in the judgment:

1st. That the supplemental petition was not legally served.

2d. That no proof was offered of the endorsement of the payees.

The first of these points is not tenable. The supplemental petition was served in the mode directed by Art. 199 of the Code of Practice.

Upon the second point the record contains no statement of facts, nor any evidence of the signature of the payees. The certificate of the Clerk of the District Court is, that the foregoing pages contain a full and complete transcript of all the proceedings as well as of all the documents filed and evidence adduced in the case.

This certificate fulfils the requirements of the law. Co. Pr., 896; 5 L. R., 298; 12 L. R., 476.

The plaintiff’s case appears to be wanting in evidence indispensible to his right of recovery. 12 Rob., 518.

The case in 15 L. R., 232, relied on by appellee, differs in the essential particular, that the certificate in that case was, that the transcript did not contain all the evidence.

■ Judgment reversed, and judgment of non-suit, with costs in both Courts.

Judgment on a re-hearing.

Buchanan, J.

In this case, being a suit by endorsee against maker of a promissory note, there was judgment by default in the Court below, confirmed without proof of the signature of the payee and endorser, through whom the plaintiff claimed.

We are satisfied that the proper judgment in such a case, upon the appeal taken by defendant from the judgment confirming the default, is a judgment remanding the cause for further proceedings, and not a judgment of non-suit. See case of Young v. Talbot, 12 R. R.; also Florance v. McFarlane, 15 L. R.

It is therefore adjudged and decreed that the judgment heretofore rendered be set aside; and it is further decreed that this cause be remanded to the District Court for further proceeding upon the judgment by default. The appellant to pay the costs of this appeal.


source: Caselaw Access Project

author: Ogden, J.

license: Public Domain

text:
    Succession of Charles Thompson. Ambrose Lanfear v. J. B. Ritchie, Curator.
    On the death of a subject of the King of Sweden, an administrator of his succession was appointed, whom the Swedish Vice Consul sought to supercede. Ueld: the right claimed is not sustained by any law, or treaty stipulation.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Q. Schmidt, for plaintiff. J. W. Price, for defendant.
   Ogden, J.

The succession of the deceased was duly opened in the Second District Court, as that of a foreigner not domiciled in this State, and leaving-property within the jurisdiction of the Court. The petitioner, as Vice Consul of the King of Sweden and Norway, for the port and city of New Orleans, represents, that the deceased was a Swede by birth, and'at the time of his death was a subject of the King of Sweden. On this ground he claims the right in his capacity of Consul to take the succession out of the hands of the defendant, who is the duly appointed administrator. This right, he alleges, ho is entitled to exercise under the law of nations, the laws of the United States and by virtue of treaties entered into between the United States and the King of Sweden and Norway.

The right claimed is incompatible with the sovreignty of the State whose jurisdiction extends over the property of foreigners as well as citizens found within its limits. The disposition of the estates of foreigners has been made the subject of special legislation and no treaty or law of the United States exists which as the paramount law confers any such right as is claimed by the petitioner, nor are wo aware of any principle of the law of nations which would entitle the petitioner to call in question the authority of our laws on that subject.

The judgment of the Court below is therefore affirmed with costs.


author: Vooshies, J.

text:
    Succession of Mrs. Simon Cucullu—On an opposition of S. Cucullu.
    An heir who lias taken the benefit of the Bankrupt Act is not thereby discharged from liis obligation to collate the advances received by him.
    APPEAL from tho Second District Court of New Orleans, Lee, 3.

      Dwig-neaud, for the executors. Collins, for opponent and appellant.
   Vooshies, J.

The account or settlement filed in this case, is opposed by Seraphini Cucullu, one of the forced heirs of the testatrix, who is sought to be made, liable to the extent of his share for advances made to him by his father, Simon Ououllu.

He is appellant from the judgment dismissing his opposition.

The evidence shows : by an authentic act, dated the 24th of May, 1852, the appellant acknowledged the receipt of $38,091 97, as advances from his father, Simon Ououllu, which he obligated himself to reimburse as soon as his affairs would enable him to do so: “Aussitot que ses affaires le mettront A meme de le faireotherwise, to collate the same in the successions of his father and mother. In the settlement of the succession of Simon Ououllu, deceased, made between his widow and heirs on the 15th of May, 1840, the appellant is debited with the sum of $65,488 83, and credited with the sum of $13,878 12^-, as the amount of his hereditary share, which left a balance due by him of $51,878 70$. We would infer from the statement of this debt in the settlement, that it was contracted anterior to the sale of the effects of the community. It was excluded from the settlement or partition, and reserved, with other assets, for future adjustment. As a debt due to the community, it is clear that the surviving partner was entitled to one-half thereof.

But it is urged by the appellant that he is released from the obligation of collating by virtue of a discharge and certificate obtained by him on the 11th of October, 1842, under the act of Congress entitled, “An Act to establish a uniform system of bankruptcy throughout the United States,” approved 19th August, 1841. The provisions of that Act extend to all debts of the insolvent existing at the time of the discharge. Were we to hold that the obligation of the appellant came within the provisions of that Act, it would, in our opinion, be subversive of the principle consecrated in our Code, that “the obligaton of collating is founded on the equality which must be naturally observed between children and other lawful descendants, who divide among them the succession of their father, mother, and other ascendants; and would besides be in violation of the law securing the rights of forced heirs to the legitime. Art. 1307, 1480 et seq. The 1305th article of our Code declares: “ The collation of goods is the supposed or real return to the mass of the succession, which an heir makes of property which he received in advanee of Ms share or otherwise, in order that such property may be divided together with the other effects of the succession.” “ The collation is made by taking less, when the donee diminishes the portion Vhe inherits, in proportion to the value of the object he has received, and takes so much less from the surplus of the effects of the succession.” Art. 1331, C. 0. Thus it is obvious from these articles, that the appellant’s obligation cannot be viewed as a debt reached by the bankrupt act; it is nothing more than the receipt of his share in advance. It is true, as remarked by our learned brother of the District Court, “ if the heirs were seeking to receive the overplus which the opponent has received beyond his share, a different question would he presented.” But such is not the case here.

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


author: Campbell, J.

text:
    Z. D’Arensbourg v. Chauvin & Levois.
    Lesion is no ground for the rescission, of a judicial sale.
    The irregularities of a judicial sale are cured by monition.
    C. 0. 1863 — 25T2.
    APPEAL from the first District Court of New Orleans, Lw'ue, J.

      David, for plaintiff and appellant. St. Pcml and Bouncy, for defendant.
   Campbell, J.

This suit was instituted for the recovery of a plantation, slaves and movables, purchased by defendants, at a Sheriff’s sale made in January 18J3, under an order of seizure and sale issued at the suit of the Union Bank of Louisiana against the present plaintiffs.

Alleging lesion and certain irregularities in the Sheriff’s sale, they pray that it be annulled and that they be restored to the possession of the property. They claim also the revenues of the plantation, amounting, as is alleged, to $20,000 annually.

In an amended petition, $2,000 is claimed as the value of sugar cane, cut down before the seizure and not included in the sale, but taken possession of by defendants.

The defendant claims title by virtue of the sale set forth by petitioners and open and peaceable possession under it. They further urge the plea of res judicata, and a judgment homologating said sale, rendered on a writ of monition. To the demand for movable property, or its value, the prescription of three years is pleaded.

We have not deemed it necessary to examine the plea of res judicata or prescription, the plaintiffs having wholly failed to establish their demand on the merits.

Lesion is no ground for the rescission of a judicial sale; and the proceedings under the writ of monition cured all the irregularities of the sale, if any existed. C. C. 1863, 2572. Act of 10th March, 1834, B. & O. Digest, p. 585.

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


author: Vooehies, J.

text:
    C. Williams and Husband v. M. Courtney.
    Appeal dismissed because one of tlie defendant’s warrantors had not been made a party to it.
    APPEAL from the District Court of the Parish of Point Coupée, Farrcm’, J.

      Ratliff, for plaintiff and appellant:
    As to plaintiff’s right to a second appeal, the judgment was rendered in the court of the first instance, on the 31st day of December, 1852. The order for this appeal was granted on the 28th of March, 1853. Petition and citation of appeal was served on Micajah Courtney, on the 6th of April, 1853 ; on Demid Barrow, Executor, on the same day, and was served on the same day — 6th of April, ’53 — on Samuel J. Powell, Curator ad hoe. Thus the appeal is in time, say nothing of the fact, that plaintiff resides and has resided nearly all her life in the State of Mississippi. See O. P. 593 ; see Smith v. TanhiU, 11 L. R. 383. Roberts v. Benton, 1 R. R. 100. 4 R. R. 259. 2 Ann. 484. 2 Ann. 628. The bond was filed 30th day of March, 1853. We now consider that we are properly before this court, and ask most respectfully an attentive consideration of our demand.

      Brewer & Oollins, and U. B. Phillips, for defendant.
   Vooehies, J.

This is a petitory action. The plaintiffs claim, by inheritance, one-fifth of a tract of land in the defendant’s possession, as one of the forced heirs of Michael Williams, who owned and possessed the same at the time of his death.

The defendant avers that he holds the land in his possession by virtue of good and sufficient titles, two acres of which, under a Sheriff’s sale made by virtue of an order of seizure and sale at the suit of the Bank of Louisiana v. John Desmont, and the balance by purchase from Bartholomeio Borrow. He also pleads the prescription of five, ten and twenty years; and prayed that the Bank of Louisiana, John Besmont and Bartholomew Barrow, be cited in warranty. His warrantors, on being cited, answered severally, except the Bank of Louisiana.

It is averred that Barrow's title to the land in dispute is derived from the estate of Mary Ann Williams, wife of Michael Williams, and mother of the plaintiff, who acquired the same by purchase at the judicial sale of her husband’s estate made on the 28th of January, 1823 ; that the plaintiff having accepted her estate purely and simply, is therefore estopped from disputing said title; that on the 14th of February, 1825, Robert B. Barrow purchased the land in question at the judicial sale of the estate of said widow of Michael Williams, and, on the 16th of June, 1830, conveyed the same to James Jones, from whose estate the defendant acquired the same by purchase. The judicial sale of the estate of Michael Williams, made under a decree of the Probate Court, was a cant or licitation made for the purpose of effecting a partition between his widow and heirs. The prescription of five years is also pleaded by this warrantor.

John Besmont, it is averred by the curator ad hoc appointed to represent him, purchased from Imlonj Keep, whom he prayed to be cited in warranty.

In relation to the Louisiana Bank, issue is joined tacitly by a judgment by default rendered on the 3d of June, 1851.

On the 31st of December, 1852, the District Court rendered judgment in favor of the defendant, and the plaintiff appealed. The appeal was dismissed by our predecessors, on the ground that all the parties having an interest that the judgment of the District Court should remain undisturbed had not been made parties. The present appeal comes up on a second order granted by the District Court, and a similar motion has been made by the appellees to have the same dismissed.

The record shows that the Louisiana Bank, one of defendant’s warrantors, has not been made a party to this appeal. C. P. 711. On the dismissal of the former appeal, the court said: “ The warrantors are the parties upon whom the loss is to fall in case the judgment should be reversed; they have a direct interest that it should remain undisturbed, and under the settled jurisprudence of this court, the appeal cannot be sustained.” It is therefore clear that this appeal must be dismissed.

It is therefore ordered, adjudged and decreed, that this appeal be dismissed at the appellant’s costs.


text:
    C. L. Landry v. J. Tullier.
    Where the quantity of land is not mentioned in the title and no boundary is given in the rear, the sale cannot be considered as one per a/oersionem, except so far as to entitle the purchaser to take all the land between the boundaries designated on the front; and the plaintiff cannot, under a title which calls for “ twenty-five arpents or more in depth,” extend the rear line.
    A record of a suit between other parties is not properly admissible to prove » ipsam, when it has no important connection or bearing on the case.
    C. C. 850.
    APPEAL from the District Court of. the Parish of West Baton Rouge, Robertson, J.

      Pitot & Mam, Edwards & Borrow, for plaintiff and appellant. Heron and T. Q. Morgan, for defendant.
   Ogden, J.

A judgment was rendered in the court below on the verdict of a jury, dismissing the demand of the plaintiff, in a petitory action to recover a parcel of land, to which both parties set up title by the pleadings.

In tracing his title to the tract which the plaintiff avers embraces the land in disputo, he claims under H. Miriam, who, on the Sth of October, sold the land to Jean Charles Comeaux, from whom, by a regular chain of conveyances, the title is derived to the plaintiff. In the sale from Miriam to Comea/wx, the tract of land is described as follows: “ All that certain tract or parcel of land situated in said parish, on the right bank of the river Mississippi, bounded above by lands of Pierre Paul Léblanc, and below by lands of Pierre Domi-nigue, containing eleven arpents or more in front, on the Mississippi,and twenty-five arpents or more in depth, with all its privileges and appurtenances.” The locus in quo is not embraced in the depth of twenty-five arpents from the Mississippi river, and the defendant is in possession of it under a title to the tract of land which lies opposite on the bond of the river which it fronts. The title of the defendant to this land was confirmed by an Act of Congress, passed the 28th of May, 1830, and by the approved survey in evidence, the land claimed by the plaintiff in this suit is embraced within the calls of defendant’s title. It is only by running back a greater distance or depth than twenty-five arpents from the river, that the plaintiff’s title conflicts with that of the defendant, and this his counsel claims he has a right to do, on the ground that the sale from Miriam to Comeaux was a sale “par arersionem.” As the quantity of land is not mentioned in the title, and no boundary is given in the rear, the sale cannot be considered as one per aversionem, except so far as to entitle the purchaser to take all the land between the boundaries designated on the front. The Article 850 of the Civil Code declares : “ If any one sells or alienates a piece of land from one fixed boundary to another fixed boundary, the purchaser takes all the land between such bounds, although it gave him a greater quantity of land than is called for in his title, and though the surplus exceed the twentieth part of the quantity mentioned in his title.” If, therefore, on actual survey, it had turned out that there was a greater quantity than eleven arpents front, the purchaser would have, notwithstanding, been entitled to all the land between the designated boundaries running back twenty-five arpents, although a greater quantity of land would thus be obtained, than multiplying the number of arpents front by the number in depth, would afford, and the vendor would be bound to warrant the title to all the land embraced by the designated boundaries ; but there being no boundary in the rear, the law referred to has no application to the right claimed by the plaintiff to have agreater depth than twenty-five arpents. As he does not complain that he has a less quantity of land than would be obtained by multiplying the number of acres in front by the number of acres in depth, it is clear that he has, in quantity, all the land called for by the sale from Miriam, to Oomeauz; and it is only when the quantity is either greater or less than that intended to be sold, that there is any room for the application of the principle of law regulating sales “per aver-sionem.n

The case relied on from 2d Louisiana Reports, of Marigny v. Nivit, which is the only analogous case referred as to the description of the land sold, was a dispute in regard to the extent of the front of the tract which was designated by boundaries, as in this case. The judgment of the court, which was first rendered, it appears, was on application for re-hearing, and with consent of the parties set aside; but the opinion, as expressed by the court, we think, accords with the views we have taken of the law in this case. But it is next contended, that from the expressions used in the act of sale, “ twenty-five arpents or more in depth,” the inference must be drawn that Miriam intended to include whatever depth he had. We cannot consider from those expressions that he intended to convey a title which, running back more than twenty-five arpents, would interfere with any adverse claimants. He would not have been bound to warrant the title for any greater depth, and as the act of sale contained no reservation or exemption from warranty for any portion of the land sold, his obligation as warrantor, and the right of the plaintiff as to the quantity of land'sold, must be regarded as co-extensivo. It should bo observed, that the sale contains no reference to any previous titles or surveys by which any definite meaning could be attached to the use of the word “more” in defining the depth, for the same expression is used in describing the front between fixed boundaries.

The plaintiff complains of the rejection by the court below, of the record of a suit of Lacour v. Dusia Leblanc, which was offered by him in evidence, to show that a judgment was rendered in that case in favor of Lacour, his vender, for the whole depth, and which judgment, he says, was a bar to the whole world. A record of a suit between other parties, is properly admissible to prove rem ipsam, when, from the circumstances of the case, it has some important connection or bearing on questions at issue between other parties. We can perceive no such bearing or connection in this case, and think the evidence was propefty rejected.

The plaintiff next contends that he is entitled to recover the land in dispute by prescription, in virtue of his possession for more than ten years, of a part of the tract, with a title to the whole as derived by him from Lacour, who acquired the property from the Aeostas as far back as 1821, in both of which deeds the land is conveyed with a depth of forty arpents. Although those who claimed the land under Oomeauz, to whom Miriam sold, acquired no title to more than twenty-five arpents in depth, the title to Lacour in 1821, conveying a depth of forty arpents, would be a sufficient basis for the prescription of ten years, if actual possession had been proved of the land in controversy dui'ing that time, and the civil possession resulting from the possession of a part with a title to the whole would suffice, if there had been neither actual nor civil possession by the defendant, or his authors during that period ; but the evidence shows that the defendant had a small part of the land claimed in this suit enclosed and in cultivation within the period of ten years, counting from 1821, so that there was not the continuous and uninterrupted possession required by Art. 3483 of the Code. The defendant and his authors may also be said to have had the same civil possession resulting from the possession of the front of their tract with a title confirmed by Congress in 1830, running back forty arpents in depth. On the whole, we see no reason to disturb the verdict of the jury.

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


author: Ochden, J.

text:
    John C. Beatty et als. v. Antoine Michon.
    The plaintiffs claimed several parcels of land, some of them by virtue of patents, others by virtue of entries for which patents had not issued. The defendant claimed the same land under certificates of confirmations by the Register and Receiver of the Land Office, embraced in their reports, confirmed by Acts of Congress anterior to the dates of the patents and entries. The plaintiffs contended that the boundaries of the defendant’s claims were vague and uncertain, and required to be fixed by official surveys to complete the title to any land whatever. Held: The confirmations which conflict with the plaintiffs’ patents and entries, were susceptible of a precise and definite location by reference to the previous surveys which were on file in the Register’s office. From them it appeared that the lands entered by the defendant were necessarily embraced within the boundary of the confirmations — and such being the case, the Acts of Congress confirming the claims reported on favorably by the commissioners, are equivalent to patents. It was the duty of the government to cause resurveys to be made, so as to seperate the private claims of defendant from the rest of the land embraced in the township. The failure to do so could not prejudice the defendant nor the plaintiffs under subsequent entries.
    ■When confirmations correspond substantially with the desc iption of the land in the certificates of confirmation, it must be presumed that the confirmations were made in reference to them.
    A party who enters land subsequent to the confirmation of the claim of another to it, is entitled to no other notice than that which the government should give by causing the confirmed claims to be truly entered on the township map.
    APPEAL from the District Court of the Parish of Lafourche Interior, Randall, J.

      J. G. & A. Beatty, for plaintiffs and appellants:
    1st. When the boundaries of a confirmed claim are vague and uncertain, and are to be fixed by the operations of the surveying department and before the survey or location, the government sells a part of the land not necessarily embraced within the tract confirmed, the title of the purchaser will prevail. Lott v. Proudhomme, 3 Rob. 298. Faheyv. Anderson, 6 Ann. 681.
    2d. It is not shown that the plots offered in evidence in this case were offered before the Commissioners, or that the confirmation was made in reference to these plots. See Slash v. Orillon, 13 La. R. UV.
    3d. If the confirmation was made according to the act offered in evidence, and they were properly located by the survey of November 22, 1848, yet as these plans and the former survey are not shown to have been returned to the proper office, and recorded so as to give notice, they are not binding on third parties. Baldwin v. Stafford, 10 Mar. 418. Commissioner of Land Office has no authority to vacate patents already issued. 3 R. 296.

      Winchester Hall, for defendant, cited Marsh & Miller v. Gonsinlier, 16 La. 89. Kitlridge v. Brand, 2 Rob. 40.
   Ochden, J.

This case presents a conflict of titles to several parcels of land, claimed by the plaintiffs by virtue of three patents from the United States, dated July 3d, 1848, and certain entries made, for which patents have not issued, dated 26th January, 3 849, and claimed by the defendant, under throe certificates of confirmation by the Register and Receiver of the Land Office, embraced in their reports, confirmed by Acts of Congress, bearing date 3d of March, 1835, and 4th July, 1836.

The titles of 'defendant being anterior in date to those of the plaintiffs, the only question is, whether the boundaries wore so defined in the confirmations and accompanying plots of survey, as to separate the land embraced in them from the public domain. If so, the Acts of Congress, confirming the claims reported on favorably by the Commissioners, are equivalent to patents, and the entries made by the plaintiffs, in consequence of the neglect or failure of the agents of the government to mark these private claims on the township map, conferred no valid title.

The plaintiffs contend that the boundaries of those confirmed claims of defendant, are vague and uncertain, and required to be fixed by official surveys before titles to any specific and definite quantity of land could be considered as derived under them ; and they rely on the cases of Lott v. Prudhomme, 3 Rob. 295, and Fahey v. Anderson, 6 Ann. 681, as settling the principles which ought to govern this case. It is true that in the present case, as in both of the cases above referred to, there is a vagueness and uncertainty in the boundaries as set forth in the confirmation, but there is a material difference in this respect; in neither of those cases does it appear that there was any plot accompanying the confirmation, nor had there been any survey or location of the confirmations made until subsequent to the entiles made by the adverse claimants. In the present case, the titles under which the defendant claims, had been located previous to the confirmations, and the confirmations were made in reference to these previous survej^s. We do not understand the decisions in either of those cases, as affirming that where a previous survey of the land has been made, it is necessary for the validity of a title by confirmation, that it should again bo surveyed under the authority of the government. Such a survey is always ordered and made by the government to prevent a conflict between the confirmed claim and the public domain remaining subject to sale, but has never been supposed to bo necessary to complete the title under a confirmation, except where the title has been confirmed as a floating claim, and so the court must have regarded the confirmation in the cases above cited, in order to arrive at the conclusion to which they came.

In the case of Fahey v. Anderson, the certificate of confirmation mentioned ' that the land was to have such form and marks, natural and artificial, as should be represented in a plot thereof, to be returned by the principal deputy surveyor; and the Act of Congress expressly required that the claimant should cause to be made at his expense, under the direction of the Surveyor General, the survey mentioned in the certificate. The court say: “ As neither the plaintiff nor their author appear to have taken any steps after the confirmation to perfect their title, the defendant’s vendor could not, by the use of reasonable diligence, have ascertained the location of their claimsand it was held, the United States had the right, under these circumstances, to sell any portion of land not necessarily embraced within the boundaries of the tract confirmed. The features of this case, as presented by the evidence, are essentially different.

The two confirmations which conflict with the plaintiff’s patents and entries, were susceptible of a precise and definite location, by reference to the previous surveys which were on file in the Register’s office. The bearings and distances were established by these surveys, and there were natural objects referred to, which showed that the lands entered hy the plaintiffs were necessarily embraced within the boundaries of the confirmations. Under those circumstances, it was the duty oí the government to cause the resurveys to bo made so as to separate the private claims of defendant from the rest of the land embraced in the township. It further appears from the evidence, that on the 5th of February, 1848, the defendant addressed a letter to the Surveyor General, enclosing his confirmation, and asking for an order of survey; that he repeated this request by a subsequent letter, and that on the 17th of March, an order of survey issued, which might have been executed, but for the neglect of the deputy surveyor, before the entries could have been made by the plaintiffs. The surveys were made afterwards, on the 22d of November, 1848, and approved by the Surveyor General, on the 9th of January, 1849. If the confirmations of the defendant could be regard id as mere floating claims, the location of them by the government, notwithstanding the neglect of its officers and agents to perform their duty, would have been a completion of the title, too late, to prevail over the purchases from the government made by the plaintiffs; but wo are of opinion they cannot be so regarded; that the defendant having done all it was in hip power to do, cannot be made to suffer, from the fact that the township map was made out and returned by the Surveyor General, without any notice of his claim.

It is contended by the plaintiffs that it is not shown that the plots, offered in evidence, were offered before the commissioners, or that the confirmation was made in reference to these plots. We think that as they were on file in the office of the commissioners, and correspond substantially with the descriptions of the land in the certificates of confirmation, it must be presumed that the confirmations were m.ade in reference to them. The notice filed by the claimant described the land by reference to one of the surveys and by natural objects, which figure on the other plot, We do not think the plaintiffs who acquired title subsequent to the confirmations, were entitled to .any other notice than that which the government should have given them by causing defendant’s private claims .to be truly represented on .the township map.

We think the defendant has shown a superior title to the land in dispute.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed, and that there be judgment in favor of the defendant, quieting him in his title to the land embraced in the three surveys offered by the Surveyor General, on the 9th January, 1849, and that the plaintiffs pay costs in both .courts.


author: Camprell, J. Campbell, J.

text:
    State of Louisiana v. L. Porte.
    The 1st section of the Act of March ISth, 1852, entitled “ An Act to suppress more effectually trade and bai'ter with slaves,” provides that “ any person or persons who shall buy, sell or receive of, to or from any slave or slaves, any corn, hay, fodder, meal, spirituous liquors or other produce or commodity whatever, without the consent of the master, owner, overseer or employer of such slave or slaves, shall be guilty of a high misdemeanor.” The indictment under the section charged the defendant with having sold spirituous liquors to a slave, and negatived the fact of the consent in writing of the master, owner, overseer or employer, following literally the language of the statute, in so far as it describes the offence. Held: That the indictment sufficiently set forth the offence.
    The accused elected to be tried by the court rather than by a jury, on a charge of selling liquor to a slave. On the trial the prosecution proved that the slave entered the store of the accused, which was shut behind him; that it was afterwards opened, when the slave came out with a jug of whiskey in his hand. The accused excepted to the introduction of the evidence, lleld: That by electing to be tried by the court, the accused has placed it out of his power to present this question to the Supreme Court; it could have been presented if the trial had been by jury, by asking instructions of the court; the question, might then have been brought up by exception, but for anything that appeared direct proof of the sale of the whiskey by the accused, might have been made.
    APPEAL from the District Court of the Parish of Pointe Coupée, Qooley, J.,

      Iaaae E. Morse, Attorney Genera!, for the State. Provosty and Farrar, for the accused.
   Camprell, J.

The defendant having been found guilty of selling spirituous liquors to a slave, without the consent in writing of his master, owner, overseer or employer, moved in arrest of judgment, on the ground that the indictment contains no allegation of any of the facts, which, under the 3d section of the Act of 1852, would go to rebut the general presumption of innocence, and to create a presumption of guilt. This motion having been overruled, the defendant was by judgment of the court, sentenced to pay a fine of throe hundred and ten dollars and to bo imprisoned for the term of one month; from which judgment he has prosecuted this appeal.

Besides the overruling of the motion in arrest of judgment,defendant assigns as error the ruling of the court, in receiving testimony which was objected to for reasons expressed in a bill of exceptions taken on the trial.

First, as regards the motion in arrest of judgment. The causes on which this motion may be grounded are confined to objections which arise upon the face of the record itself, and which make the proceedings apparently erroneous. We shall therefore not notice in this connection what is said in the motion in relation to the reception of the evidence, but will advert to it in passing upon the matters presented by the bill of exceptions.

The indictment is framed on the 1 st section of the Act of March 18, 1852, entitled “ an Act to suppress more effectually trade and barter with slavesand not on the 3d section, as is assumed by defendant. The 1st section provides that any person or persons who shall buy, sell or receive of,, to or from, any slave or slaves, any corn, hay, fodder, meal, spirituous liquors or other produce or commodity whatever, without the consent, in writing, of the master, owner, overseer or employer of such slave or slaves, shall be guilty of a high misdemeanor,” etc., and on conviction shall be sentenced, etc. The indictment charges the defendant under this section with having sold spirituous liquors to a slave. It negatives the fact of the consent in writing of the master, owner, overseer, or employer, following literally the language of the Statute in so far as it describes the offence. The crime is charged with certainty and precision, with a complete description of such facts as constitute it. The defendant, upon hearing it read, would clearly understand the charge he was called upon to answer and the court could feel no doubt as to the judgment to be pronounced upon conviction. The motion in arrest of judgment was properly overruled.

The bill of exceptions is as follows:

“Be it remembered that on the trial of this cause, the District Attorney offered to prove by one Mays, a witness for the State, that a slave entered the store of the accused, which was shut behind him; that it was afterwards opened, when the slave came out with a jug of whiskey in his hand; to the introduction of which the accused, by his counsel, objected on the ground that th'ere was'no allegation in the indictment, that said slave entered said store and remained there, and that there were no allegations which would raise the presumption of law, created by the 3d section of an Act approved the 18th March, 1852, under which Act the indictment is framed, and without which allegations no facts could be proved, going to raise such presumptions of guilt; which objections were overruled and the testimony received,” etc.

The only question here presented upon which we can pass, is as to the admissibility of the evidence, not as to its effect. Was it competent testimony under the indictment? not whether it was, in itself, sufficient to establish a sale and sustain a conviction. For aught that appears, the prosecution may not have relied for a conviction upon the presumptions established by the 3d section of the Statute; direct proof of the 'sale may have been administered.

If the trial had been by jury, and the counsel for the defendant had asked the court to charge the jury, that upon this 'indictment (there being no allegation <or statement of the facts which by the Statute creates the presumption of guilt) ¡the defendant could not be convicted upon evidence merely, that the slave was ■seen to come out of the defendant’s shop with a bot'Je of liquor in his hand, unaccompanied by any other proof of sale; the question which he desires to have decided by this court would have been before us; but on the record, the question is not presented.

For aught that appears, the testimony was properly received.

Judgment affirmed.

On a re shearing;

Campbell, J.

In refusing the re-hearing- applied for by the appellant, we think it proper to remark that the fact of the accused having been .tj-ied by the court and not by a jury, did not escape our observation in the examination of the record. That portion of the opinion of the court from which the inference is drawn by appellant’s counsel, was introduced for the purpose alone of indicating a mode in which the question that ho desired to be decided, could have been presented to the court, if the trial had, leen by jury, which words having been inadvertently omitted in the opinion of the court as delivered, have been since inserted.

If the accused, by electing to be tried by the court, rather than by a jury, has placed it out of his power to avail himself of the means of presenting on appeal questions which could haye been presented if the trial had been by jury, ¡we cannot relieve him.

Re-hearing refused.


author: Vooriiies, J.

text:
    In the matter of the Succession of Ira Smith. M. A. Smith, Testamentary Executrix of Ira Smith.
    The testator directed that the community property belonging to himself and wife should be kept together, the proceeds to be applied to the payment of his debts and certain legacies ; he appointed his wife testamentary exeeutrüo, and bequeathed to her a life estate in his property, with permission to sell the personal estate, but prohibiting the sale of the real estate. The wife “ claimed the usufruct of the entire estate of her deceased husband during her life, without waiving, but expressly reserving the usufruct of the one half of the community belonging to said estate, as accorded to her by the act of 1844, in case the provisions of said will should be declared invalid.” Held: the rights of the widow as usufructuary, either under the will or the Act of 1844, stand unaffected by her appointment as testamentary executrix. Neither are her rights, as surviving partner in community, controlled by the dispositions contained in the testator’s will. At the death of the testator her rights were fixed by law — as survivor, she could either sell a sufficient amount of community property to discharge the debts, and exercise her right of usufruct on one half of the residue, or retain the whole property and receive its fruits on paying the debts herself.
    In default of funds sufficient to discharge the debts and legacies of sums of money, the testamentary executor shall cause himself to be authorized by the Court to sell the movables and the slaves, not employed on plantations, and if they are insufficient, the immovables to a sufficient amount, to satisfy those debts and legacies. 0. 0. 1661,1662,1668,1166,1156. C. P. 090.
    In a sale, for the payment of debts, of property belonging to a succession in which minors are interested, it is not necessary to observe the formalities required by law for the alienation of minor’s property, the interest of such minors being considered merely residuary.
    The claim for the erection of a tomb over a deceased husband must be borne by his estate and not by the community.
    The Court appointed an attorney to represent an absent minor who was a legatee of the testator. The executrix filed an account, which the attorney opposed, claiming to be placed on it for professional services rendered the absent minor, and praying that the amount might be paid out of the revenues of the estate. Held: the allowance of the claim would be in contravention of the 71st Article of the Constitution of 1845, but the judgment is without prejudice to the right of the attorney to claim compensation for his services from the estate of the minor.
    A judgment rendered in an action against an executor cannot be inquired into by a legatee upon an opposition, to the executor’s account. C. P. 986, 987.
    APPEAL from the District Court of the parish of Pointe Coupée. For-rad', J.

      Bailiff, for opponent and appellant.
    Mrs. Mary Ann Smith, being a widow in community, and claiming to take under the will, is a common debtor for all the community debts, and cannot claim and take out of the common stock her separate and paraphernal property, until all the debts are paid. She cannot be in and out of the community at the same time; she is not entitled to a judgment against her deceased husband’s estate for a specific sum of money, with interest from a certain date, but must await the full administration and payment of all the debts of the estate. See Succession of Thomas, 12 R. R. 215 ; Harvey v. Foley, 1 R. R. 378 ; Fortier v. Slidell, 7 R. R. 378 ; Depas y. Bies, 2d Ann. 30. She has not renounced the community, and must await the final settlement of the estate. Therefore, the judgment decreeing a sale of property to pay the para-phernal claim of Mrs. Mary A. Smith, the widow in community, is erroneous, and should be reversed.

      Dr. Smith undoubtedly meant, that the revenues of the estate should be applied: First, to the payment of his debts; and then to the discharge and payment of his bequest, and movable legacies; and, that done, the whole was to be for the benefit of his surviving wife, during her life. But we contend that the clause of his will, prohibiting the sale of his property, unless it be absolutely necessary to pay debts, is sufficient of itself to authorize a reversal of the judgment; as no actual necessity is shown, no creditor demanded it, by suit or otherwise; the debts were small in comparison with the estate ; the revenues very largo. And, can property, whose minors are interested, be sold to pay debts, unless it is absolutely necessary and demanded by the curators. Code of Practice, 990 ; O. O. 33-1, 335, 330.
    I will next examine the judgment of the court below, as to my claim for professional services; the court rejected the demand upon constitutional grounds alone. Ho seems to think I could not be paid, under article 71 of the constitution, as it was an allowance by the court, which was prohibited by the constitution.
    I beg leave to differ with the court, d quo, on this point. This is not an allowance by the court, but a claim for professional services, absolutely rendered upon the application of the executrix herself; the object and intention of that article in the constitution was to prohibit courts of justice from making allowances to attorneys for absent heirs, of their own free will, without proof of the value of those services; and I am not sure but that clause was introduced in the constitution by one of the distinguished gentlemen now gracing this honorable court, as chief justice. The judge of the lower court received proof of the value of the services, which was fully proven by two of the opposing counsel, Messrs. Brewer and Phillips. He rejected the demand, but suggested or rather reserved my remedy to be pursued in another form of action. Did ho mean for mo to bring suit against the executrix of the estate, and liquidate my demand against it. Here the law abhors an accumulation of actions when one will suffice; the executrix is now before the court, so are all the parties in interest. A part of this controversy is the settlement of her account, filed as executrix of said estate ; it is opposed on various grounds, and ampng them I claim to be put down for the value of my services, which has been fully proved, and a judgment rendered on this issue is like a judgment rendered in the case upon any other of the issues made up, and how it can be construed into an allowance by the court, is incomprehensible to my understanding. Tour honors have decided a very similar case in the Succession of Maaarly, 8 A. 517, where the court said that the article 71, of the constitution of 1845, does not affect the right of an attorney or counsellor at law to recover the value of his services, in an action or in any other legal mode in which the parties may present their claim for adjudication. This claim is presented by way of a regular opposition to the homologation of an account; it has not been excepted to, nor any regular defence set up against its payment. Full proof has been made of the va-lue of the services; and we submit whether we are not properly before the court for its final action on this question. There is an eternal rule of right — that the laborer is worthy of his hire. I ask no more. I have done my duty for an absent minor faithfully. If I am legally entitled to be paid for my services, I demand it; if not, well and good. I would have done my best after being appointed ; any how, I believe, eonscienciously, that the judgment of the lower court is erroneous — that if maintained the legacy to the minor is a fiction ; and, so believing, I have brought the case before your honors for revision. I now place the rights and interests of the minor in your keeping. Believing confidently that you will discharge your high and important duties as consciensciously as I have endeavored to discharge my humble duty in this case. Like wards in chancery, your honors will see that the minor receives no wrong.

      W. JD. Winter and Brewer & Oollins, for defendant.
    It is too well settled now to admit of argument, that there is no obligation in the usufructuary to pay the debts with which the property is burthened, or for which it is liable from the revenues of that property. The right of the surviving spouse in the enjoyment of the usufruct, under the act of 1844, to have a sufficiency of the property sold to pay the debts, is firmly established. O. O. 574, ’76, Oeeile,f w. c. v. Lacoste and others, decided in January last; Succession of Mtzwilliams, 3 A. 489 ; Succession of Bringier, 4 A. 389.
    In a sale of succession property in which minors are interested, made to pay debts, the formalities required by law in alienations of minor’s property need not be observed. The heirs, whether of age or minors, have only a residuary interest in the estate, attaching to what remains after paying the debts. They can only avoid 'the sale to pay the debts by advancing the necessary amount to liquidate them.

      As to the claim of the attorney for his fee for his professional services, it is not contended that the amount claimed (§500) is excessive, but we think it was properly disallowed. Constitution of 1845, art. 71; Succession of Ash-bridge, 1 A. 20(5; Succession of Roland, 1 A. 22.’ If allowed at all, it cannot be allowed against the mass of the succession. If due at all, it is only due by the absentee whom the counsel represents, and to him he must look for payment. It is difficult to see how a judgment can be rendered against him in this proceeding. How can Mr. Ratliff individually obtain judgment against Mr. Ratliff curator, and how could such a judgment be executed ? Although this seems the most labored point in the counsel’s brief, we will leave it with the remark, that in behalf of the executrix, we only oppose its being allowed as a claim against the succession.

      TT. B. & R. Phillips, for Dr. Lyle.

      Dr. W. J. Dyle instituted suit against Mary A. Smith, testamentary executrix of Dr, Ira Smith, deceased, for the sum of $9,059 46, being one-half the nett proceeds of the crop made on “ Smithfield plantation ” in the year 1850. This amount was claimed by virtue of an agreement made by him with Dr. Ira Smith to that effect.
    The executrix contested the claim, and set up various matters in defence.
    The contract was fully found, and judgment was rendered in favor of J. W. Lyle for the sum of $8072 63.
    During the pendency of this suit, the executrix filed an account of her administration, and put down $10,000 as being reserved in the hands of A. Mil-tenberger & Go., out of the crop of 1850, made on the Smithfield plantation, to satisfy whatever judgment might be rendered against her, and in favor of Dr. Lyle in this suit.
    This item was opposed by the absent minor, Ira Smith, by his attorney at law, Gyrus Ratliff, as follows :
    “ This opposer objects to Dr. Lyle’s claim for any portion of the money said to remain in the hands of A: Miltenberger & Go., and denies his right to the same, and will, on the trial, require strict and legal proof, and on the trial of this opposition.”
    This opposition was filed on the 23d December, 1851, the same day on which the suit of W. J. Djle v. Mary D. Smith, testamentary executrix, was tried and judgment pronounced. The attorney who filed the opposition for the minor was present at the trial, though there is no formal appearance of his in the suit. It is contended that the judgment rendered in the suit of W. J. Lyle v. Mary D. Smith, testamentary executrix, cannot bo inquired into in this proceeding. The executrix had seizin of the estate, and there is no allegation or charge of fraud or collusion.
    It was a personal action, and a judgment against the executrix was conclusive on the heirs. C. P. 123; 8 Rob. 497; Succession of Durnford, 8d Ann. 36 ; Succession of D'Annoy.

    The only way in which the validity of the judgment in favor of W. J. Lyle can be inquired into, is by appealing from the judgment in his favor, before referred to.
   Vooriiies, J.

On the fifth of December, 1851, Mrs. Mary Ann Smith, as testamentary executrix of the last will of her deceased husband, Ira Smith, filed in the court where his succession was opened, an account of her administration, showing in detail the receipt and disbursement of $35,620 36, and the reservation of $10,000 out of the proceeds of the sales of the crop of sugar and molasses made upon the Smithfield plantation in 1850, in the hands of A. Miltenberger & Go., to abide the decision of a suit instituted against her, in her representative capacity, by Dr. William Jones Dyle, in which the latter claimed the ownership of one half of said crop; and also filed therewith a statement showing the outstanding debts, which amounted to the sum of $49,510 62, exclusive of the sum of $5000 as the probable amount required to defray the future expenses of the administration. In her petition, praying for the usual order of notice and for the homologation of her account, she al-^S135! among other things, that the legacy under a particular title, bequeathed to James Bowman, inventoried at $300 00, is the only legacy which has been discharged under the will; that she claims under said will the usufruct of the entire estate, during her life time, without waiving, however, the usufruct of one half of the community which she claims under the Act of 1844, in the event of the nullity of said will; that in order to pay the outstanding debts and costs of administration, it becomes necessary that the entire personal property, and a sufficient number of slaves belonging to the community, should be sold for cash; that according to the request of her husband on his death bed, she caused to be procured a tomb for his -remains at an expence of $3500, which should be paid out of his separate estate, and for that purpose, a sufficiency thereof should be sold for cash; that the heirs at law and several of the legatees named in the will, are represented as absentees by Gyrus Ratliff and A. B. M. Harralclson, Esq’rs, attorneys at law, under the appointment of the court; and that the other legatees concur in the prayer of their petition. She, therefore, prays that said attorneys be cited to answer her petition; that after due proceedings had, said account be homologated; that she be authorized to pay the debts due by the estate, as set forth in her petition and statement ; that there be set apart to her one hundred and twenty-three head of cattle, six and a half yokes of oxen, forty-five head of sheep, and two hundred head of hogs, to replace the stock brought, by her into the community ; that a sale of the property as aforesaid be made for cash; and that a sufficient number of slaves, as the separate estate of the testator, be sold for cash to pay said sum of $3500.

Gyrus Ratliff, Esq., attorney for the absent legatee, Ira Smith, appeared and opposed the homologation of the account, and also the prayer for the sale of the property, on the grounds, amongst others, that the sale of the real estate and slaves would be in violation of the provisions contained in the will; that there existed no necessity to sell any part of the property and effects belonging to the succession, as the revenues thereof would be sufficient in two years to pay all the debts, none of which being pressing, as shown by the executrix ; but if such sale were necessary, he then prayed that a family meeting should be called to determine what part of said property should be sold least injurious to the interest of the minor, Ira Smith, whom he represented; that if said executrix had any claim to paraphernal funds, which he denied, it was intended that the same should be refunded out of the revenues of said estate; that said executrix was indebted to the community in the sum of $15,000 for improvements made on her separate or paraphernal estate; that the claim of Mrs. Sarah Sterling was barred by prescription; and that he was entitled to be placed on said account as a creditor for his fee for professional services rendered to said absentee. He also opposed the correctness of the claims of several of the other creditors, carried on the statement filed by said executrix. .

The District Court dismissed his opposition, except as to the claim of Mrs. Sarah Sterling, and gave judgment in favor of the executrix for the sum of $17,974, with interest and right of mortgage, for the reimbursement of her paraphernal effects alienated by the testator, and also for a certain number of cattle, oxen, sheep and hogs, in kind, which she had brought into the community, and ordered the sale of the property as prayed for. The opponent is appellant from the judgment thus rendered, and claims its reversal on the following grounds, to wit:

“ 1st. The first clause of the will provides for the payment of the debts, out of the proceeds of the testator’s estate, which must be carried out.

“ 2d. The will expressly prohibits the sale of his real property by the executrix, or to make titles thereto, unless it be necessary to pay the debts that the testator says, * I now owe.’

“ 3d. There is no showing that a sale of the estate, or any portion, was demanded by the creditors, by suit or otherwise.

“ 4th. The debts, set out in the petition, are not such as would authorize a sale of the property under the will, to wit: The claim of A. Miltenberger & Go., dates after the death of Dr. Smith, and is made out against the estate. The claim of Mrs. Mary Ann Smith, for the repayment of her paraphernal rights, cannot be demanded until a final settlement and liquidation of the community debts, as she has not renounced the community.

“ 5th. The claim for the erection of a tomb is a debt contracted since his death, and the testator only permitted his property to be sold if necessary to pay debts he actually owed at his death.

“ 6th. The claim of $5000, as the probable expenses of settling the estate, is an expense not yet entirely incurred ; a sale of the estate for future expenses was not contemplated by the testator, and for such debts the executrix cannot cause property to be sold and make title. The expenses of settling the estate, if there are not sufficient funds, must be taken from the sale of the personal effects first.

“7th. No family meeting was ordered by the court á quo, nor held for the purpose of determining upon what property, if a sale was necessary, could be most advantageously sold, with the least injury to the minor; and to fix the terms of sale.

“ 8th. The court erred in not sustaining the claim of the attorney for the absent minor of $500 for professional services.”

1st The usufruct in this case is governed by the rules prescribed by our Code, on the same subject. The rights of the widow as usufructuary, either under the will or the Act of 1844, stand unaffected by her appointment as testamentary executrix; neither are her rights as surviving partner in community controlled by the dispositions contained in the testator’s will. At the death of the testator, her rights were fixed by law; as survivor, she could either sell a sufficient amount of community property to discharge the debts, and exercise her right of usufruct on one-half of the residue, or retain the whole property, and receive its fruits, on paying the debts herself, so as to relieve the heirs from the burthen of interest. Were it obligatory on the usufructuary to discharge one-half of the community debts and legacies, out of the revenues of the separate estate of the testator, as contended for by the appellant, it is obvious that her right as such would be suspended to an indefinite period, indeed, might ultimately be defeated. The interpretation contended for, is clearly in opposition to the terms of the statute, and in conflict with the rules which govern usufructs. 0. C. 578 and 579. 3d Ann. 491. 4th Ann. 394.

2d. The answer to the first objection is applicable in part to this one. The property ordered to bo sold for the payment of the community debts, consisted only of slaves and movables. We have carefully examined the evidence- as to the necessity of the sale, and are not prepared to say, that the Judge a quo erred. The claims of A. Miltenberger & Go., amounting to $25,656 09, balance due them after deducting partial payments, and of the widow, for $17,934, amount of her paraphernal property, alienated during the marriage, appear to us to be fully sustained by the evidence. Indeed wo think the evidence disclosed by the record, shows most conclusively, that the debts of the community, including the claims for a tomb, costs of administration, etc., amounted to upwards of $50,000, at the date of the order given for the sale of the property.

Sd. The answer to this objection, is to be found in the provisions of our Code, prescribing the duties of curators, administrators and executors. “ In default of funds sufficient to discharge the debts and legacies of sums of money, the testamentary executor shall cause himself to he authorized by the court, to sell the movables and the slaves not employed on plantations, and if they are insufficient, the immovables, to a sufficient amount, to satisfy those debts and legacies.” O. C. 1661, 1662, 1663, 1155, 1156-7. C. P. 990 etseq.

4th. We are of opinion that this objection is wholly unsupported by the facts contained in the record.

5th. It is clear that the claim for the erection of a tomb, cannot be received as a debt of the community, and must consequently be borne Jby the estate of the testator.

6th. Considering the nature and amount of the succession, and the various proceedings which must necessarily take place in the course of its administration, we arc under the impression that the amount provided for to meet contingent or future expenses, is not only proper, but reasonable.

7th. In the sale of property belonging to a succession in which minors are interested for the payment of debts, it is not necessary to observe the formalities required by law for the alienation of minors’ property, the interest of such minors being considered merely residuary. 11 R. 508. 17 L. 500. 10 R. 457. 11 L. 156.

8th. The allowance of the claim of the appellant for his fee, for professional services rendered to the absentee in this suit, would have been, in our opinion, in contravention of the 71st Article of the Constitution of 1845. The claim is clearly not within the exception provided for in that Article. 4th Ann. 436. 1st Ann. 206, 22. The right of the appellant to claim compensation for his services from the estate of the minor, is reserved by the judgment.

James L. Stirling, one of the creditors and appellees in this case, complains that the Judge a quo erred in rejecting his claim, on the ground that it was prescribed, and asks that the judgment be amended in his favor. He claimed to be a creditor of the testator for the sum of $3,358 15, besides interest. The testator died on the 24th December, 1850. On the 15th of January, 1851, the executrix acknowledged the correctness of his claim and promised to pay the same, concurrently with the claims of the other creditors, in the course of administration. It appears that subsequently, she paid on account of the same, $2,873 04, leaving a balance of $600, in his favor, which is the amount contested. Our attention has been directed to an account rendered by the testator in April, 1842, showing a balance of $758 66, in favor of Stirling. It also shows a note of McDermott charged to him, but the amount of which is not specified, and a memorandum at the foot of it, in these words: “ 1 have paid to Watts, and Lobdell, and Eustis, and expenses incurred in the suit of Ehs. McMicken v. Amos Webb and heirs of Jedh. Smith, about $1600, which is not charged, the suit not being yet determined.” Catherine Smith, wife of Dr. W. J. Lyle, and Sarah Smith, wife of J. L. Stirling, were the only heirs of Jedh. Smith, issue of his marriage with the executrix, and legatees under the will. In the account thus rendered, Stirling stands credited with the following items: “By amount of Sarah’s half of estate of Mrs. P. Smith, $1500. By amount due Sarah, as per settlement with L. Stirling, under-tutor to heirs of Jedh. Smith, $6,868 55.” If debited with his wife’s proportion of the amount thus paid for the heirs of Jedh. Smith, it is evident that the balance would be on the other side. The credit side of the testator’s account is relied on by Stirling, and so charged in his account. The only items charged in his account, since April, 1842, amount to $3,844 16, and the credits to $3687 62, including the amount received by him from the executrix. Thus it would seem that his claim against the estate is not so clear and certain as to authorize us to disturb the judgment of the District Court, even supposing that the plea of prescription was unavailable.

We are of opinion in relation to the claim of Dr. W. 3. Lyle, established by a judgment rendered in his favor against the executrix, that it cannot be examined in this case. C. P. 986, 987. 9 Rob. 78. 3d Ann. 36.

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


author: Buchanan, J.

text:
    Succession of Catharine L. McNeil—J. D. Mix, Administrator, v. W. J. Johnson.
    It is the duty of an administrator to proceed against his delinquent predecessor in the administra-
    Where an administrator properly sues in that capacity, his allegation of another quality in himself than that of administrator, may be treated as surplusage.
    Neither the validity nor the necessity of proceedings in the 0 >urt of Probate, for the appointment of an administrator, can be drawn into question collaterally, by a debtor of the succession.
    APPEAL from the Second District Court of New Orleans, Zea, J.

      Bonford, for plaintiff. Durant, curator ad hoe, for appellant.
   Buchanan, J.

James D. Mix, administrator of this succession, has proceeded against the former administrator, William J. Johnson, who has absconded, for an account. The District Court appointed a curator ad hoe to represent Johnson; and the curator appeals from a judgment, condemning the former administrator to pay to the present one, in his capacity, the sum of two thousand one hundred and eighty-one dollars, with interest.

The appellant assigns for error in this judgment:

1st. That no proof was offered of the heirship of certain parties, of whom the appellee professes to be attorney in fact.

2d. That the appellee’s quality of attorney in fact of those parties has ceased.

3d. That the heirs of this estate are present and represented, and consequently there is no need of an administrator.

It is true, the appellee styles himself in his rule, not only administrator, but attorney in fact of the heirs. His quality of administrator is undisputed, and not only he had the right, but it was his duty to proceed against his delinquent predecessor in the administration. His allegation of another quality in himself than that of administrator of the estate, may therefore be treated as sur-plusage, for the purposes of this proceeding; and the heirship of the parties named m the rule is immaterial. This disposes of the two first grounds of error.

Upon the third ground, we are of opinion that the validity or necessity of the proceedings in the Court of Probates for the appointment of an administrator, cannot be drawn into question, collaterally, by a debtor of the succession. Besides, there is no proof in the record that the heirs of this estate are present ; nor if represented, that they are represented by any other person than the administrator; whose right to represent them is directly put at issue by tho appellant.

Judgment affirmed, with costs.


text:
    Maunsel White & Co. v. Mary Rucker.
    It was agreed by public act between, the parties, that defendant should ship her crops of cotton to the house of plaintiffs, for sale, and that the balance of proceeds, after paying her instalments in bank and plantation expenses, should be appropriated to the payment of certain notes, as they fell due* Held; This stipulation did not impose upon the plaintiffs an obligation to ascertain at their peril the details of defendant’s accruing indebtedness for instalments in bank and plantation expenses, and when so ascertained, to discharge them. By it, the plaintiffs were bound to honor the draft of defendant in favor of the bank for instalments due, and pay orders for plantation expenses, to the extent of the funds in their hands proceeding from the sales of defendant’s cotton crops.
    APPEAL from the District Court of the parish of Points Ooupée, Fa/i'rar, J.

      Brewer & Gollins, for plaintiffs and appellants; Ratliff & U. B. Phillips, for defendant.
   Buchanan, J.

This is a suit upon four notes secured by mortgage and upon an account. The plaintiffs pray for judgment for the amount of their claim, and that the same be decreed to bear a mortgage upon the property described in the notarial act annexed to their petition.

The defence is failure of consideration of the notes, and the prescription of five years.

Defendant also claims in reconvention twelve thousand dollars damages for violation of plaintiffs’ contract with defendant, as contained in tho mortgage.

This demand in reconvention, resting on tho same facts with the plea of failure of reconsideration, they will be considered together.

The evidence shews that the parties appeared before a notary public on the 31st May, 1843, and the defendant acknowledged being indebted to plaintiffs in the sum of $6,088 63, for which she furnished the notes now sued on. She further declared, that it was understood and agreed between the parties that she is to ship her crops of cotton to the house of Maunsel "White & Go., at New Orleans,for sale, and that the balance of proceeds, after paying her instalments in banh and plantation expenses, shall be appropriated to the payment of the above stated notes, as they fall due. And for the payment of the notes and interest, defendant mortgaged tho property described in tho act.

The defendant contends that tho effect of tho clause of the mortgage italicised above, was to oblige plaintiffs to pay tho instalments of a mortgage debt of defendant to tho Bank of Louisiana, as they should fall due, and to protect defendant’s property from seizure by the bank under its said mortgage. We do not find in the clause, nor in the context, evidence of such an obligation on the part of plaintiffs. Undoubtedly, the proceeds of the crops of cotton wore to be applicable in the hands of plaintiffs: 1st, to the payment of defendant’s instalments in bank and the plantation expenses ; 2d, to the discharge of her notes in favor of plaintiffs. But there was no authority given to plaintiffs, much less an obligation imposed upon them, to seek out and ascertain at their peril, the details of defendant’s accruing indebtedness for instalments in bank and plantation expenses, and when so ascertained, to discharge them : in a word, to thrust themselves between defendant and her other creditors. The only reasonable interpretation to be given to this clause, is, that the plaintiffs were bound to honor the drafts of defendant in favor of the banks for instalments duo, and her orders for plantation expenses, to the extent of the funds in their hands, proceeding from the sales of defendant’s cotton crops ; having the right to retain only the surplus, on account of defendant’s notes hold by them.

The violation of the contract complained of by defendant, consists in this : that on the --■ day of May, 1844, J. M. Maynard, cashier of the Branch of the Bank of Louisiana at St. Erancisville, drew upon the plaintiffs for the sum of $2,042 89 in favor of the cashier of the mother bank, which draft was protested for non-acceptance, the drawees not being in funds. This draft is proved to have been for the curtailment and interest due from defendant to the bank, at its date. We think that the defendant has failed in establishing that the dishonor of this draft was a violation of the contract between the parties; not only because it was not drawn by defendant or by her authority, but also because it is proved and indeed admitted by the answer that the plaintiffs were really and truly not in possession of funds of defendant at the time, to an amount sufficient to cover this draft. It is clear that the possession by the drawee of funds of the drawer, does not create an obligation on the drawee to accept a bill for a larger amount than those funds; and there is no evidence that the bank offered to receive, or would have acquiesced in, an acceptance by plaintiffs to pay anything short of the face of the draft. In the usual course of business, the draft was presented by a notary to the drawee, and an unqualified acceptance was demanded. The account current also shews that plaintiffs paid drafts and orders of defendant, after the protest of the cashier’s draft, to the full amount of funds in their hands, exclusive of the note of defendant, which matured May 18th, 1844.

The conclusions to which we have come upon the construction of the contract and its supposed violation, render it perhaps unnecessary that we should say anything about the proof of damages.

The decided impression left upon our mind by the whole evidence on this head, is that the defendant has suffered no damage whatever by the Sheriff’s sale of the 3d August, 1844, in consequence of the understanding between the bank and Mrs. Rucker, respecting the property sold, which understanding, there is reason to infer, existed when that sale was made.

There remains to be considered the plea of prescription. Two of defendant’s notes were more than five years past due, at the date of the citation in this case, which was the 14th March, 1851. One of those, to wit: the note due 18th March, 1844, is charged in the account current filed, as one of the items to defendant’s debit. Including this item, the balance due plaintiff's by defendant, as per account rendered by the former on the 20th May, 1844, was $200 71 cts., afterwards increased by subsequent payments on defendant’s account. think that the note thus charged, merged in the general balance of account rendered, which, it will be observed, was for a far less sum than the face of the note ; and that it cannot now be revived by plaintiffs for the sake of inferring an accessory obligation of mortgage: nor on the other hand, be treated, by defendant as a debt barred by prescription. The plaintiffs have prayed for a decree allowing them a right of mortgage upon the property of defendant described in the notarial act annexed to his petition, for the security of his claim.

The property has boon sold by the Sheriff, in satisfaction of a prior mortgage, and appears to have produced no more than sufficient to discharge that prior mortgage. The record does not inform us that any certificate of the mortgages upon the property was produced and read at the Sheriff’s sale, as required by article 678 of the Code of Practice: nor that the Sheriff gave any discharge to the purchaser of subsequent mortgages to that of the bank, according to article 708. The question of the existence of plaintiffs’ mortgage might present difficulties, if the bank were a party to these proceedings; but as regards the defendant, no injury can result from considering it as still existing.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be reversed, and that the plaintiffs and appellants recover of the defendant and appellee, $4-7,078 41 cts., with interest on $1,522 15, from the 18th March, 1840, at ten per cent, per annum; on $1,522 18, from the 18th March, 1847, at ten per cent, per annum; on $1,663 08, from the 14th March, 1851, at five per cent, per annum, and that the plaintiffs be decreed to have a conventional, quoad the defendant’s mortgage upon the property described in the notarial act of the 31st May, 1843, annexed to the petition, from the date of the recording of said act to secure; $3,044 33 cts., with interest from the maturity of the two notes of defendant, due respectively on the 18th March, 1846, and the 18th March, 1847, and that the defendant and appellee pay costs in both courts.


author: Slidell, C. J.

text:
    In the Matter of S. G. Millard, praying for a Writ of Habeas Corpus.
    JjlOR the applicant, J. M. Van Dolsen.

   Slidell, C. J.

The court being of opinion that the prisoner is confined by virtue of a conviction and judgment of a court of competent jurisdiction, and that the time during which the prisoner may be lawfully held in confinement has not expired.

It is, therefore, ordered that the prisoner be remanded to the custody of the Sheriff under the writ of the First District Court of New Orleans, annexed to the Sheriff’s return in this case.


text:
    G. W. Nichols et als. v. A. Adams.
    where the description of the land is by reference to the adjoining tenements, and it is sold from boundary to boundary, no action can. be maintained for a diminution of price on account of a deficiency of quantity. 0. 0. 2471,850.
    APPEAL from the District Court of the parish of Point Coupée, Cooley, J.

      Provosty & Farrar, for plaintiffs and appellants.
   Buchanan, J.

This is an action in diminution of the price of a tract of land purchased by the plaintiff of defendant, for deficiency of quantity.

The defence is that it was a sale per aversionem.

The defendant had judgment, and the plaintiff has appealed.

The description of the land in the conveyance is as follows: “A tract of land situated in this parish at the place called 1 Village,’ where the said vendor now resides, containing twenty-six arpents front and bounded above by land of Elijah Adams, and below by land of Mareelin, f. m. c., with the special reservation of four superficial acres from the upper line, which four acres have been sold by the present vendor to O. F. Hornsby before this day as he declares; the tract, object of this sale, containing, after the above reservation, eight hundred and fifty superficial arpents more or less,” which said tract of land was originally described, in four different tracts, which the said A. Adams purchased at different times, to-wit: the tract above at the succession sale of Joel Robertson — the middle one at the succession sale of John Thomas, and the one below at the succession sale of Isaaa Alston, all of which sales are recorded in the files of the recorder’s office, in this parish, to .which said files the parties refer themselves for further and more particular description. From the documents referred to in this description the land appears to front on the Mississippi river.

Such a description of land sold has frequently been decided by the Supreme Court to come within the provision of the 2471st Article of the Civil Code, and consequently to exclude the action quanti minoris. Curry v. Archinard, 5 N. S., 240. Johnston v. Quarles, 3 L. Rep.,92. Graftston, curator, v. Wells, 4 L.Rep., 536. Hoover v. Richards, 1 Rob., 36. See also Civil Code, Art. 850.

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


text:
    Hannah Swift et als. v. Ann Swift et als.
    Where a nuncupative testament by public act does not mention that the three witnesses who signed it, reside in the parish where the will is executed, parol testimony can not be given to supply the omission.
    Plaintifls brought suit to annul a will; defendants pleaded the prescription of five years. Held: that the Judge correctly charged the jury that they were at liberty to infer the absence of plaintilTs from the State for the five years following the death of the testator,» from testimony of their absence after the expiration of those five years.
    C 0.1571,1587.
    APPEAL from the District Court of the parish of Point Coupée, Farrear, J.

      Ratliff, for plaintiff Cooley, Brewer & Collins, for defendants and appellants.
   Buchanan, J.

This is an action to annul a nuncupative testament by public act. The will does not mention that the three witnesses, who signed it, reside in the parish where the will is executed. C. C. 1571, 1587. And a bill of exceptions was taken on trial to the refusal of the District Judge to permit the residence of the witnesses to be proved by parol.

The Judge did not err. This point has been expressly ruled in the case of Leblanc v. Buras' heirs, 16 L. R., 80.

There is another bill of exceptions to the charg-e of the Judge to the jury, in relation to tho plea of prescription. The counsel of defendants prayed the court to charge the jury that if the testimony only proved the residence of tho plaintiffs out of the State after the lapse of five years from the death of the testator, such testimony was not sufficient to enable plaintiffs to avail themselves of the delay of ten years, accorded to absentees for bringing the action of nullity of -a testament.

But the Judge refused this charge, and charged the jury in substance that they were at liberty to infer the absence of plaintiffs from the State for five years following the death of the testator, from testimony of their absence after the expiration of those five years.

The court did not err. The Article 8507 of the Code bars the action in nullity of a testament, in five years, where the party entitled to exercise it resides in the State, and in ten years, if he be out of it.

The defendants pleaded the prescription of five years against this adion. That plea depends upon proof of tho fact that the plaintiffs were in the State during five years following the death of the testator. But when the plaintiffs had proved the allegation of their petition that they were absentees at the time of the institution of the suit together with other circumstances, wre think with the Judge below, that their having always been absentees was a fact for the .jury to decide, and that in this as in many other cases, its decision might lawfully be based upon an inference from other facts which were directly proved. It has been shown that at one time the plaintiffs were absent from the State, and that they are natives of Ireland, and it has not been shown that they were then in the State.

In view of the facts which appear to have been proved, we cannot say that the inference of the jury in the present case was at all strained, as to the continuous absence of the plaintiffs from the State. The verdict of the jury seems to us in accordance with the facts, and the law. 0. 0. 1588.

Upon one point, however, the judgment of tho District Court appears to require amendment. By consent of counsel on the trial, the cause was tried on the sole ground of the validity of the will, reserving the remaining questions for subsequent action. The jury found a general verdict for plaintiffs; and the court entered up judgment upon the verdict that the will of John Swift be deemed null and void, and that plaintiffs be decreed, to be heirs at law of the said John Swift, and of their deceased father and mother, Hugh Swift and, Ann Swift in the succession of the said John Swift, deceased, for the portions falling to them respectively by law. This clause of the judgment is erroneous, being a matter not passed upon by the jury.

Judgment amended by striking out the clause recognizing plaintiffs as heirs at law of John Sioift, Hugh Swift and Arm Swift, and affirmed as amended ; the costs in the court below to be paid by the appellants — those of appeal, by the plaintiffs and appellees.


author: Ogden, J.,

text:
    R. Wells & Co. v. A. St. Dizier.
    A party cannot be admitted to prove what he has not alleged. The general issue reduces the controversy between the parties to the question of the truth or falsity of the plaintiff’s allegations, and the legal effect of the facts when proved.
    The petition alleged that defendant had taken possession of the property in dispute without title.

      Held: under a general denial, defendant could not give evidence of title.
    The affidavit for sequestration was in these words: “He, said affiant, fears that the defendant, Auguste St. Dialer, will conceal, part with, or dispose of the flatboat and lumber, claimed in the within petition, during the pendency of this suit.” Held to be sufficient. Ogden, J., Voorliies, J., and Ditchononv, J., concurring.
    Even if the allegations be indefinite, yet if it appears from the previous proceedings in the cause that the opposite party had sufficient notice of the nature of the demand or defence intended to be advanced, and could not have been surprised, evidence to support such demand or defence will be received. Slidell, O. J., dissenting, Ganvpbell, J-, concurring.
    APPEAL from the District Court of the Parish of Iberville, Robertson, J.

      Labame, for plaintiff and appellant:
    Defendant, under his plea of the general issue, offered to prove on trial the sale of the flatboat and lumber by this hand to him, defendant. The plaintiffs objected to this introduction of such evidence and testimony, on the grounds that such evidence and testimony was not authorized by the pleadings and auswers. The court admitted the evidence and testimony, and the plaintiffs excepted to the decision of the court. (See the receipt for boat and lumber, document marked B., and bill of exceptions, page IS of record.) The court certainly erred. It seems to be clear that such an important fact, not personal to the plaintiffs, going to defeat their right of action, and extinguishing their right and title to the property in dispute, should have been specially pleaded and set forth in the answer, Glime v. Teausie, 6 La., 457; Mortimer v. Tajppan, 9 La., Ill; FT. 0. Gas Light and Banking Go. v. Hudson, 5 Bob., 486; Lan&ry v. Bouejnon, 17 La., 82; Demis v. Demis, lb., 259; White v. Merino, lb., 371; McKoion v. Mather, 19 La., 542, 3 An., 325; Bludworthv. Hunter, 9 Bob., 256. Pleas of payment, novation, &c., must be specially pleaded and set forth in the answer, because they extinguish and destroy the title and the obligation held by the party. So, in this ease, a sale by the agent to the defendant would have extinguished and destroyed plaintiff’s title to the boat and lumber.

      Robertson, for defendant;
    The statement of facts set forth in the affidavit, did not authorize the issuing of the writ, and is not such as would subject the party to the penalties of perjury, if the facts sworn to were proven to be otherwise. 0. P., art. 275, sec. 2; Watkinson v..Black, 14 L. B., 351; Ranaldson v. Hamilton, 5 A., 20.
    As a general rule, every means of defence, such as payment, &c., which goes to show the extinguishment of an obligation admitted, or proved to have once existed, must be pleaded specially. The object of this rule is apparent, it prevents a party from being taken by surprise. But we think the circumstances of this case form an exception to the rule, and respectfully submit that its application to a case of this nature would produce manifest injustice. The plaintiff does not sue upon an obligation, as for the price of the things sold, but alleges we have taken possession of his property without title, and sues for its recovery. He does not directly repudiate the acts of his agent, by whose authority the contract divesting him of his title was made, as we think he should have done, in bringing his action; nor can he plead ignorance of his acts, (see Wolfe v. Rogers, 6 B., 100,) ho could not therefore have been taken by surprise when defendant offered to prove a contract, and payment under it, to show an adverse title in himself, or any other fact tending to destroy plaintiff’s right of action.
    We think the case of Frem v. Allen, 3 M., 381, applicable. The court say: “ This is an action brought upon an account current, unsettled between the parties — the plaintiff claims a balance, and appellant (defendant) has pleaded the general issue. On the trial of the cause below, the appellant offered to prove that the plaintiff had omitted in the account sundry credits in his favor; but the evidence was refused on the ground that he had not pleaded compensation specially. The court held that where, instead of demanding the price of the goods by him furnished, the plaintiif undertakes to oppose the defendent’s claim to his, in order to compare them, &c., it cannot be said that either of the claims are liquidated, for the very object of the suit is to obtain that liquidation. In such a case, both accounts are put at issue, and any evidence tending to support or contradict the correctness of either, ought to be admitted.”
    In the case of Davis v. Dams' Syndic, 17 L. R., 262, the court held: “ That under the plea of the general issue, the defendant had a right to show that the plaintiff had no dawn at all, or a lesser one than that set up. Under the same plea he might have shown money legally expended, and in general, every payment to any other person but the plaintiff, which tended to destroy or lessen his liability, as averred by the plaintiff.” In the case of Bonndbel v. Bouligny, 1 R., 293, it was decided that “ under the general issue, defendant had the right to show any foot tending to prove that he was not indebted to the plaintiff, as sot forth in the petition.
   Ogden, J.,

(Yookiiies, J., and Buchanan, J., concurring.)

This is an action to recover a flatboat of lumber, alleged by the plaintiffs to be their property, and to have been found in the possession of the defendant without anjr title to it. The prayer of the petition is that the defendant be condemned to deliver up to the petitioners the boat and lumber, or in default thereof, to pay its value— twelve hundred and fifty dollars.

The answer is a general denial of the allegations of the petition.

On the trial of the cause in the Court below, the defendant offered in evidence a receipt for $500, signed by one F. Pearson, purporting to be for the price in full for a boat and its contents of lumber, and also offered parol testimony to prove that he had purchased and paid for the property in dispute. The plaintiffs objected to the introduction of the evidence on the ground of its inadmissibility under the pleadings. The objection was overruled and the evidence received, to which the plaintiffs took their bill of exceptions. We think the Judge a quo erred in admitting the evidence. The rule is, that a party cannot' be admitted to prove what he has not alleged. If the defendant intended to roly on a title by purchase from Pearson as the ostensible owner, he should have pleaded it in his answer. The general issue reduces the controversy between the parties to the question of the truth or falsity of the plaintiffs’ allegations and the legal effect of the facts when proved. It is contended that this case forms an exception to the general rule, because it is alleged in the petition that defendant had taken possession of the property in dispute without title. We are unable to see why, on that account, a different rule of pleading should exist from the general one. If the plaintiffs had claimed damages for a trespass, besides claiming the property or its value, such evidence could have been received under the general issue in mitigation of the damages, but there is no principle under which it could be admitted, without having been specially pleaded in order to prove ownership.

The sequestration was set aside on motion of defendant’s counsel, on the general ground of errors apparent on the face of the record. The grounds for dissolving the sequestration ought to have been specialty assigned in the Court below; but no objection was taken by the plaintiffs to the form of the motion.

The grounds presented by the defendant’s counsel in this Court arc:

1st. That the affidavit is insufficient, in not stating that the defendant was about to remove the property out of the jurisdiction of the Court.

2d. That the plaintiffs do not swear to the ownership of the property.

3d. That the affidavit, being in the alternative, is defective, vague and uncertain.-

4th. That the affidavit is not such as would subject the party to perjury, if the facts sworn to were proven to be otherwise.

The words of the affidavit are, “ He, said affiant, fears that the defendant, Auguste St. Dizier, will conceal, part with or dispose of the flatboat and lumber, claimed in the within petition, during the pendency of this suit.” This, we think was a literal compliance with the article of the Code of Practice as amended bjj-the Statute of 20th of March, 1839. The sequestration was improperly set aside and should be reinstated.

Although we think the evidence on the part of the defendant was inadmissible under the pleadings, and cannot give our sanction to such a loose practice of pleading, we are not willing, under the circumstances of this case to preclude the defendant from setting up a title to the property under the receipt, which was improperly received in evidence, and conclude that justice requires the case should be remanded, with leave to the defendant to amend his answer.

It is therefore ordered, adjudged and decreed that the judgment of the Court below be amended and reversed, the sequestration reinstated and the cause remanded for a new trial, the defendant to pay the costs of the appeal.

Slidell, C. J.,

(with whom concurred Campbell, J.,)

dissenting. I think there are circumstances in this case which bring it within the rule frequently recognized, that even if the allegations be indefinite, yet if it appears from the previous proceeding in the cause, that the opposite party had sufficient notice of the nature of the demand, or defence, intended to be advanced, and could not have been surprised, evidence to support such demand or defence will be received. See the cases collected in Hennen’s Digest, verbo Pleading, p. 1211, No. 2.

In the present case we find that in the deposition of a witness examined on the part of the plaintiffs, taken some months before the trial, the fact of a sale having been made by the person left in charge of the boat and lumber by plaintiffs’ agent, was sworn to; and at the trial of the cause it was proved by the plaintiffs’ witnesses, on their direct examination, that the agent had full authority to sell the lumber any where on his voyage down the river, from the State of Mississippi to New Orleans; that this agent had stated to divers persons living in the neighborhood that they might buy from Pearson,, the person left by him in charge, any lumber they might want, and that Pearson had sold portions of the lumber to two neighbors of the defendant, delivered the lumber and received the money.

It is proper to observe that no application for continuance on the ground of surprise was made by the plaintiffs. If there had been, and the application had been refused, a different case might have been presented, upon which no opinion need be now given.

Upon the merits, I consider the evidence offered by the defendant, coupled with that offered by the plaintiffs, sufficient to justify the decree of the Court below dismissing the plaintiffs’ action.

For the above reasons I think the judgment should be affirmed.