text:
    Girard et al. v. City of New Orleans et al.
    A testator bequeathed to the corporation of a city “ a settlement consisting of one thousand arpante of land, with tho appurtenances and improvements thereon, and all tho personal estate thereto belonging and thereon remaining, including thirty slaves and their increase ; directing that no part thereof should he sold or disposed of for twenty years after Ms death, should B-survive him and live so long, bat said settlement to be kept up by Br for said term of years as if it were his own,- that is, to remain under Ms sole care and control, all the nett profits thereof to bo enjoyedby B for his own use; he rendering annually an account to the city of tho state of the settlement, showing its income and expenses, the number and increase of the slaves, and its nett profits; the testator further directed that,at the end of said twenty years, or at tho death of B should he not live so long, the land, improvements, slaves, and other appurtenant personal property, should be sold as soon a» tbe corporation deemed it advisable; tho proceeds to be applied by the corporation to such uses as it might deem most beneficial to the inhabitants"Held, that the ownership of tho property was given to the city, and tho usufruct to B ; that the occurrence of circumstances' preventing tho establishment from being kept together, will not terminate th® usufruct; that the language of the will is merely descriptivo of tnc property, and not restrictive of its future nso, pre-supposing the employment of tho slaves on tho land, but not imposing it as a condition of the usufruct; and that the fact of such employment becoming impossible, or so onerous and inconvenient as to make it unreasonable to exact it, could not deprive theusufruotuary of the fruits of the ordinary labor of the slaves-elsewhere than on the land.
    The 1st sec. of the stat.of 17 February, 1805, restricting the right of tho corporation of New Orleans to hold real estate, to such as is situated within- tho limits of the city, does not include slaves.
    Slaves are not real estate. They are declared to be immovables by a positive provision of the Code (art. 4G1); hut neither in common parlance', nor in law, arc they designated by the term real estate.

    The owner of property subject to an usufruct has alone the right to call the usufructuary to-account.
    APPEAL from the District Court of Ouachita, Curry, J.

      McGuire and Say, for the appellants. Garrett, for the defendant Bry.

   The judgment of the court was pronounced by

Eustis, C. J.

This suit is instituted for the rocovory of certain lands and slaves which formed part of the succession of tho lato Stephen Girard1 of Philadelphia, ®f whom the plaintiffs are the heirs at'law. It- involves the validity and effect of certain dispositions of his last will, and particularly of one by which ,, 4 the testator gave a-tract of'one thousand acres of land in the parish of Ouachita, established as a plantation, including the slaves, to the city of New Orleans, and disposed of the usufruct of the land and slaves to Henry Bry, for the term of twenty years from the decease of the testator, provided the usufructuary should survive him so long.

A question has-been raised by the pleadings, and argued-at length, as to the' city of New Orleans boiug properly cited and made a party to this suit. After-the argument of the case-at the last-term, we directed the record to be taken to-New Orleans, in order'that the corporation might become a party to the suitf. and have the important interests dependent on it examined and discussed before us. We caused notice to be given to the proper authorities to that effect; but our efforts were cot successful; and. as the case stands before us, we are bound to decide the technical question as the corporation being properly in court, and thus leave the material points of controversy, so far as its interests are concerned, to be the subject of future litigation.

The citation is addressed to Henry Bry, as attorney in fact of the city of New Orleans, and was served on him in person, at his domicil in the parish of' Ouachita. Bry expressly, disavowed his authority to appear for the city of New Orleans, and excepted on behalf of the corporation to the sufficiency-of the citation as in any manner binding on the corporation. This exception was overruled, and it is on the validity of this means of bringing the corporation into court that we must first decide. There was no impediment to citing,the corporation regularly in this suit; it could have been sued as a party defendant, and ought to have been -cited by its proper officers^ C. P. 163.

We are not at all’disposed to recognise the propriety of citing an attorney in fact, though he may have authority to appear in a court of justice, when the principal is present; and it is, to say the least, questionable, whether a municipal corporation can delegate such an authority. C. P. arts. 112, 198. Civil Code, arts-. 429, 420. But this suit was instituted in 1841, and the power to Bry was given in 1832;-before the division of the city, which took place- in 1836, and the disavowal of his authority on the part of Bry to appear for the old corporation, is conclusive as to the power of the court to act. on any matter exclusively appertaining.to its interests, without having its representatives under the new municipal-organisation cited according to law.

Asa matter of- practice it is too clear to admit of doubt that the old corporation of the city of New Orleans; not having been properly cited, was notin court; and that the judge erred in overruling the exception to that effect. This being the state of the case, and the parties representing the residuary interests under the-will not being before the court, as the plaintiffs insist on a decision of the cause as it is before us, it is obviously our duty to confine our decision to those questions exclusively, by the determination of which the rights of the parties not represented will not be adversely affected, to wit: the ownership and usufruct of the slaves.

The plaintiffs contend that the testamentary disposition, in favor of the city of New Orleans and Henry Bry, of the land and slaves in the 19th clause of the will, is void, for want of a capacity to receive it on the part of the city, which by law had no right to hold lands except within its limits; that the usufruct falls with the failure of the legacy of the ownership; that there has been such a change in the property that it can no longer be used in the manner directed by' the will, and that the usufruct has thereby terminated, it being, as constituted by the will, of an entire thing, to wit, of a plantation and slaves to be worked together, and indivisible; and that, for each of these causes, the land and slaves belong of right to the plaintiffs, as heirs at law.

If it be conceded that the plaintiffs’ position, in these respects, be-correct, another question presents itself, and that is, whether, under the will, the proXrerty would in that event belong to them, or fell within the 1 esiduary clause, which is in favor of the mayor, aldermen, and citizens of Philadelphia. This question was ai'gued before the Supreme Court of the United States in the case of Vidal v. Girard's Executors, 2 Howard’s Rep. 128, but was not decided, the court considering the devise, which was contested, to be valid. It appears to rest upon authorities which are conflicting, and as it is not necessary to be decided now under the view which we have taken of this case,-we proceed to examine the grounds on which the legacy of the usufruct in -favor of JBry .is sought to be defeated. The clause- constituting it is- in- these words:

“ AH that part of my real and personal estate near Ouachita, in the State of Louisiana, the said real estate consiting of upwards- of two hundred and eight thousand arpents, or acres o:f land, and including the settlement hereinafter mentioned, I give, devise, and bequeath, as follows, namely: 1. I give, devise, and bequeath to the corporation of the city of New Orleans, their successors and assigns, all that part of my real estate, constituting the settlement formed on my behalf by my particular friend, Judge Henry Bree, of Ouachita, consisting of upwards of one thousand arpents or acres of-land, with the appurtenances and improvements thereon, and also all the personal estate thereto belonging and thereon remaining, including upwards of thirty slaves now on said settlement, and their increase, in trust, however, and subject to-the following reservations: I desire, that no part of the said estate or property, or the slaves thereon, or their increase, shall be disposed of, or sold, for the term of twenty years from and after my decease, should the said Judge Henry Bree, survive mo and livo so long, but that the said settlement shall be kept up by the said Judge Henry Bree, for and during said term of twenty years, as if it was his own; that is, it shall,remain under his sole care and control; he shall improve the same, by raising,.’such produce as ho may deem most advisable: and, after paying taxes, and all expo jses in keeping up the settlement, by clothing the slaves and otherwise, he shall have and onjoy for his own use, all the nett profits of said settlement: Providod, however, and I desire that the said Judge I-Ienry Bree shall render annually to the corporation of the city of New Orleans, a report of the state of the settlement, the income and expenditure.thereof, the number and increase of the slaves, and the nett result of the whole. I desire that, at the expiration of the said term of twenty years, or on the decease of the said Judge Henry Bree, should he not live so long, ..the land and improvements forming said settlement, the slaves thereon or thereto belonging, and all other appurtenant personal property, shall bo sold, as soon as tho said corporation shall deem it advisable to doso, and the proceeds of the said saleorsales shall be applied by the said corporation to such uses and purposes as they shall consider most likely to promote the health and general prosperity of tho inhabitants of the city of New Orleans. But, until tho said sale shall be mado, tho said corporation shall pay all taxes, prevent waste or intrusion, and so manage ihe said settlement and tho slaves, and their increase thereon, as to derivo an iucome, and the said income shall bo applied, from time to time, to tlie same uses anc* PurPosesi f°1- the health and general prosperity of the said inhabitants.

“ 2. I give, devise, and bequeath to the mayor, aldermen and citizens of Philadelphia, their successors and assigns, two undivided third parts of all the rest ,and residue of my said real estate, being the lands unimproved near Ouachita, Jn the said State .of Louisiana, in trust, that, in.common with the corporation of the city of New Orleans, they shall pay the taxes on the said lands, and preserve them from waste or intrusion, for the term of ten years from and after my decease, and at the end of the said term, when they shall deem it advisable to do ■so, shall sell and dispose of their intei’est in said lands gradually, from time to time, and apply .the proceeds of such sales to the same uses and purposes hereinafter declared and directed of and concerning the residue of my personal .estate.

“3. And I give, dovise, and bequeath to the corporation of the city of New ■Orleans, their successors and assigns, the remaining one undivided third part of the said lands, in trust, in common with the mayor, aldermen and citizens of Philadelphia, to pay tho taxes on said lands, and preserve them from waste and intrusion, for the term of ton years from and after my decease, and, at tho end .of the said term, when they shall deem it advisable to do so, to sell .and dispose ■of their interest in said lands gradually from timo to time, and to apply the proceeds of such sale to sueh uses and purposes as the said corporation may consider most likely to promoto the health and general prosperity of .the .city of New Orleans.”

We think by these terms the ownorship„of tho property is given fo .the city ,of New Orleans, and tho usufruct to Henry Bry, during the period ofand on the condition specified; and we do not find that the right appertaining to .either .ownership or usufruct are .restricted, except as to the limitation of the latter as to time, to wit, the term .of twenty years, or the survivorship of the .usufructuary for that term. We do not perceive that there is any ground -for circumscribing tho rights of the usufructuary, as is contended for by the plaintiffs, or for confining the usufruct unqualifiedly to the state the property was in at the time of making tho will or the decease of the testator, and for holding the usufruct to be determined by the change which prevented the establishment from being kept together. The words made use of in the will are descriptive of tho property as it is, and not restrictive of its future use. There is no attempt made to attach, by a condition, tho slaves to the land, or to render it obligatory that they should be employed on it, and in no other way. Indeed, so far from the testator having any disposition to change or modify the condition of the slaves, their sale is expressly ordered by the will on the termination of the usufruct by the death of Bry, or on tho expiration of the term of twenty years. The slaves had all been purchased and held in tho name of Bry, because the latter very judiciously refused to have anything to do with their management unless as their absolute owner. He was for many years the agent of -the testator, and had the entire control of his property in Louisiana, and had conducted his business to the entire satisfaction of his principal. Hence the provision of the will that the settlement should be kept up as if it was his (Bry’s) own. It appears that the greater part of the settlement mentioned in the will was upon lands to -which the testator had uo title; it had been made outside of his limits, and upon the lands appertaining to tho public domain, which had been since purchased by .other .persons. The slaves became insubordinate, and Bry, believing that they had sel; lire to their cabins, which had been destroyed, and that the establishment could not safely be continued, removed the hands from the place. The land was then leased ; the gin was afterwards destroyed ; and, it being known that the settlement was upon the lands of the United States, it does not appear to have been afterwards cultivated.

This contingency was far from being foreseen or provided for by the testator, and the rights of the parties depend exclusively on the legal effect of the clause by which the usufruct was constituted. Restrictions on the right of property are not to be left to implication, and we do not feel ourselves authorised to modify the light of usufruct which Bry possesses under the will, or to impose on it any penalties or conditions other than those which the law imposes. The will gave him the usufruct of the slaves; it directed or presupposed their employmonton a certain estate, but did not impose it as :a condition of the usufruct. Their employment as directed has become impossible, or so onerous and inconvenient that it would not be reasonable to exact it, by reason of the principal pant of the land belonginging to a third party, and the improvements being destroyed. We aro at a loss to perceive on what principle these causes can defeat the usu=fructof the slaves, or deprive the usufructuary of-the fruits of their ordinary-labor elsewhere. There is no such condition in the will, and the law implies none.

If the usufruct of the slaves is therefore to be considered separate and apart from that of the remaining portion of the land, what is there to prevent the city of New Orleans from taking the legacy of the ownership of the slaves 1 The provision of the act of 1805, which .the plaintiffs rely upon as restrictive of ■the right of the city to hold property, has no reference whatever to slaves. The corporation could hold and conyey any estate, real or personal, for the use of the corporation, provided sueh real estate .be within .the limits of said city. Slaves are in no sense real estate ; they are ¡considered as immovables by a positive article to that effect; but neither in common parlance, nor in law, are they designated by the term real estate. The right o.f the city to take by will or. donation, so far as it relates to slaves, rests on the general provisions of the Cofie relating to corporations. Civil Code, art. 424.

The corporation of the city,of New Orleans is therefore the owner of the slaves, and alone competent to.call the usufructuary .to an account for the causes set fqrth in the plaintiffs’ petition, and alone has the benefit of the termination of the .usufruct.

So far .as relates to the claim of the plaintiffs to the land which is the subject of the legacy, it can only be determined in a suit in which proper parties are made; and we desire tliatthe questions involved in it should be considered as entirely unaffected by the decision w7e make in this case, which is final only in relation to the usufruct of the slaves, which is the only interest represented by a party in court antagonist to that,pf the plaintiffs, and on which we have decided at the instance of both parties.

The suit against the city of New Orleans is therefore dismissed ; and the judgment in favor of .Henry Bry is affirmed, with costs in both courts.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Livingston v. White et al.
    'Where, in the settlement of a succession, two distinct judgments have boen rcndored, one upon a statement of debts filed by an administrator, and the other upon an account of his .administration, and the application for appeal is from the judgment upon the statement of . debts, but the bond is given as for an appeal from that upon the account, the appeal must be 'dismissed.
    It is no part o'f the duty of a. clerk to prepare an appeal bond, so as to bring any irregularity in its execution within the 19th section of the stat. of 20 March, 1839, authorising the Supreme Court, in certain cases, to" grant time for'the correction of errors or irregularities.
    An appeal.must be dismissed .where the appellant had not obtained an order authorising him ¡to appeal.
    .Parties claiming us creditors or heirs must prove in the lower court that they are such, or ■they will.notbe heard as appellants from a judgment relative to the succession.
    APPEAL from the Court of Probates of Morehouse, Temple, J.

      Richardson and Baker, for the appellants. McGuire and Ray, contrá.
   The judgmant-of the-court was pronounced by

Slidell, J.

This transcript, and the proceedings exhibited by it, are extremely,confused. The transcript is entitled and¡endorsed as the case of Aaron Livingston v. Joseph A. White and others. The proper title would seem to be, Succession of JoJm T. White, or Joseph A. White and others v. Aaron Livingston, Administrator. It is evident that there have been antecedent proceedings ¡which have not been comprehended in the transcript, and this omission has-tended to-incrense the perplexity. The transcript commences with a statement of debts presented by Livingston, as administrator, and a petition for its homologation. There are various motions to dismiss, .which, after a careful examination of the transcript, we are compelled to sustain.

Aaron Livingston is one of the appellants. There were two distinct judgments rendered. Gne was upon a classified statement of debts,¡filed by Livingston, as administrator. The.other was ¡upon an account of his administration, filed by him. The appellant, Livingston, moved for an appeal, by a motion in writing, signed by his attorney.. In this motion he prayed for “ an appeal from the judgment.rendered on the trial of the opposition to¡the statement of debts in said estate,” and also prayed that the amount of a devolutive appeal bond may be fixed for said appeal.” At the foot of this written application isa memorandum, signed by tho-judge : “Bond fixed at $200.” There is also an entry on the minutes stating that a motion for appeal was granted, but not stating who made the motion. The entry would seem, from the context, to refer to other parties. The only bond filed by Livingston, is a bond in favor of Joseph A. White, which recites that, “.whereas the above bounden Aaron'Livingston has appealed from a certain judgment rendered against him in the Court of Probates for the parish of Morehouse, in the case of Joseph A. White v. Aaron Livingston, Administrator, on opposition .to account,” &c. There is then a .written application by Livingston for an appeal from the judgment upon the .statement of debts, and an appeal bond as in case of appeal from the judgment ■upon the account. The argument presented by the appellant is, “that the judgment upon the account and the statement of debts were both rendered on ■the same "day, and that the clevis, it appears, has not mentioned in the bond the judgment on tlie statement of debts, which is a mere clerical error, though the motion for appeal asks for an appeal from th® judgment rendered on the trial of the opposition to the statement of debt's.” We find nothing in the transcript to establish that the discrepancy between the application and order and the bond, is attributable to the fault of the clerk, nor are we aware of any provision of law which makes it the duty of the clerk to prepare the bond of appeal, so as to bring the inequality in that respect witbing the statute of 1839. We are unable to relieve the appellant, and the motion to dismiss must prevail. There is an appeal bond given by A. D. Peck, but we find no order authorising him to appeal. The motion must- also prevail as to him. So also as to Charles Perkins, who has given no appeal bond.

The remaining appellants are David, White, McMoy, and Joseph A. White. The-two former claim as creditors, the later as heir. The claims of the two former were opposed, and were rejected by tlie judgment’of the court below. ¥e find no evidence sustaining their claims as creditors, and they are consequently not before us as parties in interest entitled to prosecute an appeal. Nor does-the transcript contain any evidence establishing the right of Joseph A. White as heir, which, in proceedings of this nature, so far as the proceedings are shown by the transcript, he was bound to establish.

It is always with reluctance that we dismiss appeals;- but the application to dismiss is insisted upon, and we cannot refuse it without establishing a precedent which would lead to extreme irregularity and embarrassment.

Appeat dismissed'L


author: Kino, J.

text:
    Farrell v. Yoe et al.
    A married’woman may Bind herself as surety for any other person than Her Husband, when-' authorised By the latter, or By the proper judge.
    Appeal from the District Court of Caddo, Campbell, J.-

      Gilbert, for the appellant. Crain, for the defendants.
   The judgment of the court was pronounced by

Kino, J.

The plaintiff, her husband, and her brother, were the joint and several makers of three promissory notes, payable to the defendants. To secure their payment, the plaintiff with the concurrence of her husband, executed a mortgage on several lots of ground, of which she was the owner in her separate right. After the maturity of the last note, the mortgagees obtained obtained an order for the seizure and sale of the hypothecated property, which the plaintiff Sarah Ann Farrell, has- enjoined, on the ground that the debt is due by her brother Lewis E. Farrell; that she became the surety for its payment ; and that she is forbid by law from entering into such a contract. The injunction was dissolved in the court below with general and special damages, and the plaintiff has appealed.

There is no error in the judgment appealed from. It is true, as alleged by the plaintiff that she was only a surety, but the contract was not one which the law prohibits her from making. The debt for which she obligated herself was due neither by the community, nor by her husband. For obvious reasons married women are not permitted to bind themselves for their husbands, nor conjointly with them, for debts contracted by the latter, before' or during the marriage. Those reasons are not applicable to contracts of suretyship entered’ into for other persons than the husband, which it is not to be presumed the marital'influence would be exerted to induee the wife to make.

Judgment affirmed.


author: Kins, J.

text:
    Gilbert v. Neal.
    'iVbero an áttoi'Hey at law, appointed curator ad hoc to represent an absentee ánd defend an' action instituted against him; is afterwards retained by the latter as bis counsel, an ear parte ord’eV of the court, made sit the time'of rendering final judgment in the case, allowing him a certain fee for his professional services, biit made Without the assent of the counsel,- and not subsequently acquiosb'ed in by him, is not a judgment, and cannot be pleaded as' res judicata to an action by the' counsel, on his contract with the client, for the compensation1 due for his professional services. Per Curiam: The order decreeing a sum to be paid to the attorney, Who was no party to the action, was not a judgment. There were no partios1 before the court between whoin such a decree Couldbc rendered.
    Appeal from the District Court of Caddo, Campbell, J.

      Gilbert, appellant, pro sc. Landrum, on .the same side.- Crain, for the defendant.-
   The judgment of the court was pronounced by

Kins, J.

The defendant having beeh sued as an" absentee, the present plaintiff, Gilbert,- was appointed by the court the curator ad hoc to represent him,- and’ defend'the suit. Subsequently the defendant retained Gilbert as his counsel’.' At the trial of the cause Gilbert was not present, but Whs represented by other counsel provided by'himself. In the final judgment rendered a sum of fifty dollars was taxed by the' court, as a fee to be paid by the defendant to his attorney, for his professional services rendered in defending the suit. The plaintiff, who was not present when the decree was1 rendered, is not shown to have assented to the sum' fixed by the court as his compensation, nor to have acquiesced subsequently in that part of the judgment; but, on the contrary, he appears previous to that date to have commenced the present action by attachment, churning $400 as his fee, for his services' under his professional engagement. To this claim the defendant opposed a plea of res judicata, averring that the plaintiff’s compensation had been finally determined by a judicial decree. The plea was sustained, and the plaintiff’s claim rejected. From that judgment the plaintiff has appealed.

The order of the court decreeing a sum to be paid to the plaintiff, who was no party to the suit, was not a judgment, and could not be enforced as such. It Was an ex' parte order, which the judge was without authority to grant. There Were no' parties before the court, between whom such a decree could be rendered. 9 La. 88. 11 Ib. 267. The plaintiff founds his claim upon his contract With the defendant. The evidence fixes the value of his services at $250; and for that sum we think he is entitled to a judgment.

The judgment of the District Court is therefore reversed. It is further ordered that the plaintiff recover of the defendant the sum of $250, and that he have the privilege of an attaching creditor upon the property attached. It is further ordered, that the defendant pay the costs of both courts.

         The evidence shows that Mr. Gilbert was absont from indisposition. — R.


author: Smdell, J.

text:
    Lynch et al. v. Crain.
    Where the parties to an action consent that the testimony taken on the trial shall he reduced to writing hy the judge in a certain manner, to serve as a statement of facts in case of appeal, and the mode adopted is as well calculated to secure a fair and accurate statement of the evidence as if the testimony had hoen taken down hy the clerk, neither party can object to it after appeal.
    An application to file an amended answer containing a call in warranty, made a year after' filing the original answer, where the facts alleged in the amended answer must have been within the knowledge of the defendant before the institution of the suit, is too lato, and will not justify any farther delay for the purpose of bringing in the Warrantor.
    PPEAL from the District Court of Caddo, Campbell, J.

      Garrett, for the plaintiffs. Me Gaire and Ray, for the appellant.
   The judgment of the court was pronounced by

Smdell, J.

The appellant lias asked that this cause be remanded for a new trial, upon the ground that it cannot be considered on the merits, for want of the evidence adduced in the court below, the absence of which he asserts is attributable to the fault of the district judge, and not to the appellant. The clerk has certified that the transcript contains all the evidence upon which the cause was tried. The transcript also shows that the district judge, at the request of the litigants whose cases were tried at that term and were applicable, reduced the testimony in the various cases to writing in a book, to serve as statements of facts in case of appeal, noting the titles of the respective éauses, and closing the manuscript with his official certificate. Among th® statements thus made was that of the testimony adduced at the trial of this cause. The course thus pursued by the district judge, at the request of the litigants, has been a common one; and is surely as well calculated to secure a¡ fair and accurate statement of evidence, as if the testimony were taken down by the clerk. Having consented to that mode of preparing the case for appeal, the defendant cannot be permitted now to object to it.

There was a bill of exceptions to the refusal of the court to permit an amended answer to be filed containing a call in warranty. The defendant, who is a member of the bar, appeared in this suit in proper person. The application was made a year after the filing of the original answer, and after repeated continuances, two terms having intervened since the service of the petition-. The matters alleged in the amended answer, if correctly alleged, must haver been within the knowledge of the defendant before the institution of the suit; and even if they presented a case originally authorising a call in warranty? upon which wo express no opinion, the court very properly considered the application as coming too late, and not justifying any further delay in the trial of the cause for the purpose of bringing in tire warrantor.

The evidence forbids the imputation of the payments made by Luakett to the note upon which this suit is brought. Judgment affirmed,,


author: Slidell, Ji

text:
    Brigham et al. v. Taylor et al.
    An appeal must be-dismi3sed where the real-party in interest is not included among those to-whom the appeal bond is made payable.
    F'PEAL from -the District Court of Ouachita; Selby, J.

      Purvis and Parsons, for the appellants.

      Garrett, for the defendants.
    It has been repeatedly decided, that the appellant must bring before the court all the parties having an interest in main--taining the judgment undisturbed. 12 Rob. 180'. 5 Rob. 226. 3 Rob. 62, 436. 16 La. 110. 15 La. 363. 12 La. 475. In the case last' cited, the Supreme Court declare the question then fully settled by previous decisions.And their names must be included in the appeal bond, or the appeal will be dismissed. 1-0 La. 271. 12 Rob. 205. C. P. 474,.-575! In 12 Rob. 205 the court dismissed the appeal without any motion by appellee, being unable to examine - it in the absence of proper parties. The appellants can not be permitted to-correct their irregularities. The provisions of the act of 1839, sec. 19, do not apply to a case like this. The cases in- which relief Will be granted are there' specified ; a- defective appeal bond is- not among the irregularities mentioned ; and for the- oases mentioned in that act it must not appear that the defect, error, or irregularity is imputable to the appellant. It is the duty of the appellant to ■ furnish the appeal bond; it is no part of the clerk’s duly to make it out. C. E. 575. It is the duty of the appellant to see that the necessary steps are' taken to bring up his appeal, and place it legally before this court. 16 La. 50; 14 La. 293.- 6 La. 586;
   The judgment of-the court was pronounced by

Slidell, Ji

There is a motion to dismiss this appeal on various grounds,only one of.which need be noticed. The plaintiff, Brigham, obtained an injunction-against certain executions upon twelve months’ bonds, which were originally given to Taylor, Gardiner & Co. It is alleged in the petitions for the injunction, that the bonds had been transferred by Taylor, Gardiner & Co. to the Ocean Insurance Company. The defendants in the cause were Taylor, Gardiner, & Co.,-the Ocean Insurance Company, and the sheriff. They all appeared in the court below in a motion to dissolve the injunction, Which was granted against all of them. The written motion for dissolution is made by eounsel in the-name of “the defendants’-, and must be considered as an appearance of alkthe defendants including the Ocean-Insurance Company. Upon this motion there was judgment dissolving the’injunction, and the plaintiffs, on motion in open court, obtained an order of appeal. But the appeal bond given, is given only to Taylor, Gardiner 4*-'Cb.,-and to the sheriff. The Ocean Insurance Company is not a party obligee in the bond; yet, according to the averment of the petition, they are the real party in interest, as transferrees of the bonds upon which the executions issued. The Company was an indispensable party to- the appeal, and not having been properly made a party by reason of the defectiveness of the bond, the appeal must be dismissed.

Appeal dismissed.


author: Eustis, C. J.

text:
    Clarke v. Scott et al.
    in an action fur cliunaijes against the sureties in a sequestration bond, tha Tact that judgment was rendered for tile defendant in the suit in which the sequestration was taken out, will not alone bo noticed; the reasons given for the judgment will bo considered, and where ■ they show that judgment was affirmed in favor of the 'defendant on the ground that courts -■of justice should not lend their aid to either party to enforce a contract entered into for pur- ■ poses reprobated by law, nominal damages only will be given.
    APPEAL from the District Court of Ouachita, Selby, I.

      McGuire and Say, for the plaintiff. Purvis, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This suit is instituted by Clarke, who was-the defendant in the case W. H. Puckett and wife v. Clarke, reported in, 3 Robinson, 81, on a sequestration bond given by the plaintiffs in that suit in his .favor and for his benefit, judgment having been rendered for the defendant and affirmed on the appeal. The suit of Puckett and wife was for the recovery of eight slaves and two horses, which were held in sequestration during its pendency; and the present action is for damages, the details of which are slated in the petition, for which the sureties in-the sequestration bond aro alleged'to be responsible in consequence of the breach of the condition, that is for those sustained by the defendant in case the sequestration should have been wrongfully obtained. The case was submitted to a jury, who found a ver'dict for the plaintiffs for §700; a remittitur of §150 was entered by the plaintiff, and the defendant Copley has appealed.

It is contended by the counsel for the plaintiff that the decision of the case of Puckett and wife v. Clarke, is conclusive as to the rights of the parties, and -necessarily renders the plaintiffs liable to the defendant, for the-actual damage sustained by him by reason of the unlawful caption and detention of his slaves and horses tinder the writ of sequestration. In determining on the claim of the plaintiff, it is impossible for us to see nothing else but the text of the decree ,of the Supreme Court itself; we must examine and consider the reasons on ■which it was founded, and which the court felt itself bound to give as exponents of their opinion under the evidence of the rights of the parties. We ,do not find the property to have been considered to belong, in good conscience, -to the defendant; such is not the basis of the decision. Let it speak for itself. The reasons given may not be conclusive and binding on us as faets, but they .are given, undor a provision of the constitution, by the.court in the last resort, and cannot be overlooked.

The opinion given in that case by the Supreme Court is as follows, Bullard, judge, delivering it:

“ The plaintiffs assert title to eight slaves, which they allege are in the possession of the defendant, and that he obtained them, together with two horses, illegally and fraudulently, and under false pretences and promises made to the plaintiffs to preserve them for their benefit, and to restore them -when required. The defendant, in his answer, avers that he has ajust title to •the slaves, and that this action is brought in fraud to deprive him of his just ■rights. This case was submitted to a jury, whoso vordict was for the defend-ant, and the plaintiffs have appealed.

“ It appears that the wife, one of the plaintiffs, inherited the slaves in the State °f Mississippi, and that they became the property of the husband on their marriage, according to the laws of that State, and were afterwards sold under execution to satisfy a judgment against the husband, and bought in by the defendant, who left them in the hands of tho plaintiffs until sometime afterwards, when they were delivered to the defendant, to prevent their being seized by other creditors of the husband. The sheriff’s sale was probably not a real one, according to the evidence in the record, and no conveyance was made, hut the slaves were left in the plaintiffs’ possession. Tho defendant was, however, afterwards put in possession for purposes reprobated by law, that is to say, for the purpose of enabling 'him to set up his title under the first sheriff’s sale, and thus hold himself out to the world as the owner, and defeat tho pursuits of other creditors of the husband. The present action is brought, substantially, to obtain relief against that agreement, and to cause the defendant .to restore the property, since the danger has passed away. Under these circumstances, our first enquiry should be, whether the caso be one in which a court of justice oughtto interfere, or whether it bo not of that class of cases in which the maxims, Ex turpi causa non oritur actio, and In pari delicto potior est conditio possidentis, apply.

“In the case of Gravier's Curator v. Carraby's Executor, 17 La. 118, we stated explicitly the principles by which we consider ourselves bound to be governed in questions of this sort. It is not easy to distinguish the present case from that. In the case now before us, if the sheriff’s sale was not a sham one, ft vested the title in the defendant; and if it was, then there was collusion for tho fraudulent purpose of covering the property; and the subsequent shifting of the same property back and forth, was in furtherance of the same design. Such contracts and transactions are illegal, and the parties will not be listened to, when they invoke the aid of the court to enforce them against each other.”

From an examination of the evidence we have come to the same.conclusions, as to the situation in which the parties have .placed themselves in relation to this property, and concur fully in the view taken by the judge who gave the opinion on the duties of courts in similar cases. The plaintiff, Clarice, has the possession of the property, and as the cqse stands the judgment is to him a title. But we cannot recognise his claim for the damages claimed against the defendant, who may still be the.owner in good conscience, by reason of his action .in a court of justice to obtain by lawful means property to which there was no adverso title to his, acquired by the present plaintiff, until the final judgment in the case. Vide Stetson v. LeBlanc, 6 La. Rep. 272. We can allow only nominal damages.

It is therefore ordered that the judgment appealed from be annulled and reversed, and that judgment be entered for .the plaintiff, against the defendants, for $10, insólido, with costs in the court below ; the plaintiff and appellee paying tho costs of this appeal.


author: Slidull, J.

text:
    Williams v. Vance.
    Parol evidence is admissible to contradict or add to the stipulations in a written contract for tlio sale of land, whore tho party offering it alleges that the land described in the contract was not that which he intended to purchase, and that it was fraudulently substituted by the vendor for-tlio latter. Per Curiam: Tho admission of parol evidence, for such a purpose, to defeat written contracts, is a rale of universal jurisprudence.
    In answer to on interrogatory whether “ payment of the note sued on had not "been demanded since maturity”, propounded to a defendant with reference to tho question of costs dependent upon an amicable demand before suit, tho latter cannot state in his answer matters striking at the foundation of tho action and tho validity of tho -contract out of which it originated.
    An appeal will lie though the amount of the note sciod on bo tinder $300, where the defendant having set up the invalidity of a contract of which the note saod on was a part, tho amount thus involved in tho controversy exceeds 8300.
    Appeal from tho District Court of Union, Copley, 3\

      Bailey, for tlie plainliif.
    The evidence was Phillips on Evid. vol. 1, p. 548; lb. Cow. and Hill’s Notes, pp. 1384, 1420 el seq. 3 La. 459. 10 La. 172. 4 Rob. 290. 16 La. 129. The court did not err in striking out the part of defendant’s answer to the interrogatory, which was objected to. C. P. 353. 6 Rob. 1. 9 Rob. 173. The amount in controversy did not authorise an appeal. C. P. 874. 9 Rob. 153.

      McGuire and Ray, for tho appellant.
    The parol evidence should have been received. 4 La. 350. 19 La. 140. 2 La. 3. C.-C. 1818.
   Tlie judgment of the court was pronounced by

Slidull, J.

This action is on a promissory noto for $225, of which the defendant is maker, and the plaintiff payee. Tho appellant -pleaded a failure of consideration. He avorredthat this note, -with another for the sum of §247 50, was given in consideration .of an obligation executed by the plaintiff in bis favor, to make him title to a piece of land in tlie parish of Union, being the west half of tho north east quarter of section 25, in township 22, of range — east: That in this contract ho was deceived and defrauded by the plaintiff, who described the lauds as situated so as to comprise certain improvements, to wit, a dwelling house and out-liouse, worth at least §300, and also a portion of cleared land, when in truth, and to the knowledge of the vendor, the improvements were on other land, not owned by the vendor; and that these improvements were the chief consideration or motive for the purchase. Pie prays for judgment in his favor upon the note now sued upon, and for a decree that the other note be returned, and the contract rescinded ; or if not entitled to such relief, then that a proper deduction be made from the price, and for general relief, &c.

At the trial of the cause tho plaintiff offered the note in evidence, and his title from the United States-to the land above described. The defendant also offered the obligation, or “bond for title”, above mentioned, describing the land by numbers, &c. as above stated. By a bill of exceptions it appears that the defendant also offered to prove “ that there was error in the principal motive for making the contract and giving the note sued upon; that by the representations of plaintiff he was induced to believe that ho was purchasing improved lands, on which there was a dwelling house and considerable improvements, but that plaintiff defrauded him by putting into the bond for title particular numbers for lands upon which there are no improvements, lying at a different place from the land shown to him; which evidence was objected to by the plaintiff, on the ground that the bond was only for land by numbers, without saying any thing about improvements, and that oral evidence could not beroceived to contradict, or add to, the expressionyn tho bond ; which objections were sustained by the court, and the evidence was rejected.

The evidence ought to have been received. It went.to show that the written contract never hud any legal existence or binding farce. Fraud vitiates all ■ contracts;-those who practico it, rarely commit tho imprudence of affording written proof of its.oxistouco; and if the injured-were not permitted to expose it by oral evidence, they would, in.almost all cases, be remediless. Hence the .admission of parol evidence for such purpose to defeat written contracts, has becomo a i’ulo.of universal jurisprudence. See Story’s Equity, vol. 2, § 1531. Greenleaf on Evidence, § 248. Broussard v. Sudrique, 4 La. 351.

The rejection of the evidence entitles the defendant to have the cause re.manded for a/pow trial. In doing so it is proper to notice another bill of exceptions, taken by the defendant.to the order,of the court striking out a portion of the defendant’s answor to an interrogatory. The sole interrogatory propounded by the plaintiff was : “ Has not the amount of said noteheen demanded.of you since maturity ?” To this the defendant answered, that,he had had a conversation-.with the plaintiff, in ..which the plaintiff said he was in great need of money, but did not, to his recollection, expressly demand payment. He then ])roceeded to give at length a statement of .the reasons why he had not paid the note, disclosingíits consideration and the ,-circumstances under which it was given. The court struck out.all but those portions responsive to the question propounded. We think the court did not err. Some latitude is allowed in answering interrogatories beyond the simple confession or .-denial of the fact. In the language of the Code of Practice (article 353), the :party interrogated may state some other facts tending to his defence ; provided they be closely linked to the ftict on which he has been questioned, and an appeal made to his conscience. But in the present case a latitude is claimed which goes beyond the fair intendment of the lawgiver. The interrogatory went merely to the question of-costs, dependent upon “the amicable demand before suit”; and the response runs into matters .which strike at the foundation of the action, and the validity of the contract.

In conclusion, we observe in relation 4o what was said at bar upon the point of jurisdiction, that although theplaintiff sued upon a note not amounting to §53 0 0., yet the answer of the dSfendant set up the invalidity of the entire contract, of which the note was a part. The controversy thus covered an amount exceeding 55300, and was brought within our jurisdiction.

It is therefore decreed that the judgment against the defendant, E. G.Vanc% be reversed, and that this cause be remanded for a new, trial as to the said .appellant ; the plaintiff paying the costs of this appeal.


author: Kino,- J.

text:
    Taylor et al. v. Stone.
    To make a valid seizure of a promissory note under a fi. fa., tlie Sheriff must -take actual possession of the note.
    Without aprevious seizure,.no adjudication can'he made by a sheriff under a fi. fa.

    Appeal from the District Court of Catahoula, Farrar, J.

      Garrett, for the plaintiffs.
    There is no seizure unless the sheriff takes possession of 'the property. 1 La. 491. 6 Robinson, 347. 9 lb. 182. 7 lb. 500. Pailhes •v. Tkielen, 1 An. R. 34.

      McGuire and Ray, for the appellant.
   The judgment of tho court was pronounced by

Kino,- J.

Tlie defendant is sued for a balance, alleged to be due on a promissory note of which he is’the maker. He admits his signature to the note; avers that large payments have been made on account of it, which have not been credited; and finally claims to be the owner of'the note, in virtue of a sheriff’s sale to him made under an execution directed against the plaintiffs, whereby the note has been extinguished, and his liability-'to the plaintiffs discharged. A judgment was rendered against the defendant in-the court below, from which he has appealed.

It appears from the evidence that, under an execution issued against the plaintiffs, the sheriff'attempted to seize the note in-question, which, at the time, was in the hands of the attorney of- the plaintiffs for collection. xV notice of seizure was served upon the attorney, but the sheriff appears never to have obtained possession of the note, notwithstanding-which he proceeded to advertize it for sale, and to adjudicate it, at the second exposure, to the defendant for §100, on a credit of twelve months. It has been repeatedly held that a valid oeizure, for purposes of sale under an execution, cannot be made, unless the sheriff obtains actual- possession of the property seized. Without a previous seizure, no adjudication can be made. The sale'of the note to the defendant was therefore void. Fluker v. Bullard, ante 388.

The plaintiff has prayed that the judgment of the District'Court be amended, and that he be allowed a larger sum than was awarded to him by the court below. After allowing all the credits to which the defendant is entitled, the balance appearing to be due is §1,618 21, instead of §1,4-50,' for which last sum" judgment was rendered in the District Court.

It is therefore'ordered that' the judgment of the District Court be amended,- and that the plaintiffs recover of the defendant the sum of §1,618 21, with ten per cent interest thereon from the Istof'March, 1844, until paid, instead of the sum of §1,450, decreed to the plaintiff's in the judgment appealed from ; the appellant paying the costs of both courts.


text:
    Frellsen v. Copley.
    No appeal will lie where the amount in dispute at the time of instituting the suit was loss than three hundred-dollars, though interest and costs, which have accrued since, raise the amount above that sum. Const, art. 63.
    Appeal from the District Court of Ouachita, Selby, J.

      McGuire and Ray, for the appellant. Garrett and Purvis, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

We have no jurisdiction in this case. When the suit was instituted, the amount in dispute did not roach the sum of §300; and, even if the interest and costs since accrued would carry the claim to a sum exceeding §300, the case cannot be considered here. See Coons v. Threlked, 9 Rob. 153. Mason v. Oglesby, ante p. 793. Constitution, art. 63.

Appeal dismissed.-


author: King, J.

text:
    Lindeman et al. v. Theobalds et al.
    Continiiedpossession by a vendor, acting as owner, after a sale, creates the presumption of simulation, and imposes on the vendees, as to third persons, the burden of proving there'ality of tho sale. C. C. 2456, 1915. The mere fact of the vendor, who was the mother of the vendees, continuing to live with her children on the place sold after the transfer, is not of itself a badge of simulation.
    Where a, party enjoins an execution against a third person claiming the property seized by virtue of his possession under an act of sale duly registered, and defendent prays for the dissolution of the injunction on the ground that the sale was simulated and fraudulent. he must establish the simulation, or the injunction will not be dissolved. In such an action evidence will not be admissible to prove that the sale was fraudulent; for where there has been a real, though fraudulent, sale, detrimental to creditors, the title and possession of the purchaser cannot he disregarded; the creditor can only reach the property by causing the sale to be annulled in a direct revocatory action. It is only in cases of simulated sales, not intended by tlio parties to convey any property, that the creditor may disregard the title of tlic purchaser and seize.
    Where a married woman joins her husband'in an action, in which they assert title in the latter to property, conveyed to her by her tutrix, in settlement for her share in the succession of her father, by an act sous seing privé, duly registered, but signed by the husband alono, under which the latter was imactual possession, tho possession and registry will amount to notice to third persons ;.and the joining in the action is an approval of the acts of the husband.
    Art. 2417 of the Civil Code, which provides that a sale of immovables or slaves sous seing priv&has effect against the creditors of the partios and against third persons in general, only from the-day of its rogistry in the office of a notary, and the actual delivery of tho thing sold, must be considered as controlling art. 2242 which declares such sales to he valid from the dates of their registry in the office of a notary, or from tho time of the actual delivci'y'of Íhe'fchingsoíd.
    Appeal from the District Court of Ouachita, Copley, J.

      R. W. Richardson and Sharp, for the plaintiffs. Garrett, for the appellants.
   The judgment of the court was pronounced by

King, J.

'The plaintiffs have enjoined the execution of a writ of fieri facias, issued under a judgment obtained by tho defendants against Maria B. Ludewig. They allege that they are the owners of the property seized by the sheriff under the writ, in virtue of a title derived from Maria B. Ludewig, and that the act under which they hold was duly proved and recorded, in 1844. The defendants in their answer aver that, the transfer from Maria B. Ludewig to the plaintiffs, who are her children, is simulative, fraudulent, and collusive, and without consideration; that it was unaccompanied by delivery of possession ; and that'the vendor remained in possession after the transfer and up to the date of the seizure. The injunction was perpetuated' in the court bolow, and the defendant's have appealed.

The act under which the plaintiffs claim title is under private signature, but was proved and admitted to record in tho office of the parish judge on tho 11th of September, 1844. The vendor declares in the act that she is the widow of Conrad Lindeman, the father of the plaintiffs; that she was their tutrix for many years, and as such had charge of and administered the property inherited by tho latter from llioir father, of which no final account had boon rendered, and of which no account could then bo judicially rendered, in consequence of tl;e length of timo which had elapsedfsince the death of lior husband; that in .order to satisfy the just claims of the plaintiffs, as heirs of her deceased husband, she conveyed and gave in payment to them- certain properly described in the act, amongst which is the tract of land seized under the writ enjoined. In consideration of the transfer the purchasers exonerate the mother from all liability or indebtedness arising from her tutorship, stating that the act is a compromise ; and a- “ complete acquittance and release from each side to the other” is given. This act is signed by the vendor, by Henry, and Benjamin Lindeman, by Fenner, the husband of Louisa M. Lindeman, and by Sandford, the husband of Catharine Lindeman.

It appears from the .evidence that, immediately after the sale, Henry, and Benjamin Lindeman, mid Sandford, were in possession, each of distinct portions of the tract of land conveyed, cultivating, and exercising other acts of ownership over, it. Neither Fenner, nor his wife, is shown ever to have been in possession. The mother continued to reside on the place with her children after the conveyance, but is not shown ever to have exercised acts of ownership after the date of the transfer.

As Regards the plaintiffs Henry, and Benjamin Lindeman, and Mrs. Sand-ford, we think, under this state of facts, that the case presents no serious difficulty. The act under private signature under which they claim, had effect against third persons from the date of the registry and recording, and of tho delivery of possession to them, all of which had been effected prior to the date of the seizure. C. C. art. 2417. The fact that the mother continued to live on the place with her children after the transfer, is not of itself a badge of simulation. It is the continued possession of the vendor, acting as owner, after the sale, which creates the presumption of simulation, and imposes on the vendees, as regards third persons, the burthen of proving the reality of the sales. Civil Code, arts. 2456, 1915. Thibodeaux v. Thomasson, 17 La. 360. No such possession on the part of the vendor has been shown ; but, on the contrary, tho three plaintiffs whose claims we are now considering, appear to have been in the actual possession each of a distinct portion of the land conveyed to them, prior to, and at the date of, the seizure. Having failed to establish the continued possession of the vendor after this registered and' recorded sale, it was indispensable to the success of the defence set up in this action by the defendants, to prove their averment of simulation by other evidence; for when there has been a real, although fraudulent, sale, operating to-the detriment of creditors, the title and'possession of the purchaser can not be disregarded. The creditor in such cases can only reach the property conveyed, by causing the sale to be annulled in a direct revocatory action. It is well settled that the title in such cases can not be attacked directly, commencing with a seizure. It is only in cases of simulated sales, which are really intended by the parties to the apparent contract to convey no property, that the judgment creditor may disregard the title of the purchaser and seize. Cammack v. Watson, 1 An. 132. Wright v. Chambliss, 1 An. Rep. 262. Hobgood v. Brown, ante 323. Nimmo v. Allen, ante 451.

The defendants offered a witness on the trial to prove that the slaves conveyed by the act of sale were worth §15,000, and that the estate of Conrad Lindeman was insolvent at his death. This evidence was objected to, on the ground that the act could not be impeached for fraud in this action. The objection was sustained, and tho defendants oxcopled to the opinion of the court. The judge did not, in our opinion, err.- The facts proposed to be proved'by the witness would not have established tliat the sale was simulated, but thafit was fraudulent, and, under the view- we have taken of-the case, such proof would only have been admissible in a direct action to annul the sale on the ground of fraud.

But it1 is contended;1 as regards Mrs-. Sandford, that she neither signed the act,' nor authorised her husband to sign it. It is true that no express authority fi-om herself to her husband has been shown. But the latter was in actual possession under the sale, exercising ownership-over a- part of the land seized. This possession, with a-duly recorded title, was a notice to - third persons, and the wife has affirmed the acts of her husband by participating in this action.

In relation to Mrs*. Fenner, a different question is presented. She claims under an act under private signature, which not only has not been signed by heiy but under which' neither she, nor her husband for her; has ever held possession. Both the registry' of- the act; and delivery of possession of the thing.sold, were indispensable to give effeotto the salo against third persons.-

. There is-an apparent conflict between the articles 2242 and- 2417 of the-Code. The former provides that'- “‘sales or: exchanges of real* property or-' slaves by instruments made under private signature,-are valid against bond file■ purchasers and creditors, only from-the day on which-they- are registered in the office of a notary, o?-froin.-the time of the actual delivery- of the thing sold or-' exchanged.” The latter declares that the sale of-any- immovable or- slaves made • under private-signature,, shall-have effect against the creditors- of- the parties,- and against third persons in general, only from the day* such-sale was- registered-in*-the office of a notary and the actual delivery of the thing sold took place. The former article, which gives effect to sales under private signature againstbbnd fide purchasers and creditors from- the date of registry or delivery, and which occurs under-the head of conventional obligations, must yield to the latter, which requires both-rregistry and delivery, and which is found among the rules specially provided for the government of- the contract of sale. C. C. 2413.

But it is contended that the contract under which the plaintiffs claim is a compromise, and must be good as a whole, otherwise it fails entirely; that the assent of-all the parties to it was indispensable, to give it validity and binding effect between the parties themselves; and that the assent of Mrs-. Fenner not Waving been shown, the act is incomplete even as to those who executed it. This quostion is one not perhaps free from-difficulty, upon which we do not think it necessary to express an opinion.

It appearing on the face of the instrument that a. part of the vendees had signed-the-deed; and it-being shown that possession-passed to thorn, and that the deed has been recorded, we think, as to those who so became parties, the creditors ought to resort to their revocatoi-y action.

We conclude tliat, as to the plaintiffs' who were in possession at- the date of tiie seizure and were parties to the deed, the injunction was properly sustained ; but that as to the interest claimed by Mrs. Fenner, the- seizure was proper, and the injunction ought-to have been dissolved.

It is therefore ordered that the judgment of the District Court be reversed, so far as relates to tlie-plaintiff Louisa M. Lindeman, and that, as to the undivided' interest of one-fburtli in the land seized claimed by her, the defendants be permitted to proceed with the execution of their writ of fieri facias. It is further ordered that said judgment be affirmed, so far as concerns the plaintiffs Henry Lindeman, Benjamin Lindeman, and Catherine Lindeman, wife of Sandford, without projudico to tho rights of tho defendants, if any they have, to proceed against those parties in a direct action; the plaintiff, Louisa M. Lincleman, paying tho costs of this appeal and ono-fourth of the costs below, and the defendants the remaining- throerfourths of the costs of the lower, courts..


text:
    Bank of Alabama v. Livingston.
    •Where tho certificate of the clcirit, appended to a transcript of the record of-an action in another State, states that the document “ is a full and complete transcript of the record and proceedings, executions and returns thereon, except the t-wo first executions, 'which have not been returned,".and it appears.from the transcript itself that two other executions were issued subsequently to those stated not to have been returned, it ..will be presumed that tho fact of-tho two first executions not having been returned was -no obstacle 'to tissuing ■ the two last, and that the latter were issued according to the laws and practice in the -State in which the judgment was rendered; and the transcript will he admitted in evidence.
    Appeal from the District Court of Moreliouse, Copley, J.

      McGuire and Ray, for tho plaintiffs. R. W. Richardson and Sharp, -for tho appellant.
   'Tho judgment of tho court was pronounced by

Eustis, C. J.

This action is brought on.a judgmentrand'erod'by tho Cár«•cuit Court of Tuscaloosa county, in tho State of Alabama, iisfavor of tho plain.‘tiffs against the defendant and Tristram B. Bethea, for the sum o'f §950, -and ¿the further sum of §21 61, damages, together-with costs.

The only question which the case presents for our decision is set forth in a •bill of exceptions, taken by the defendant to the admission of the transcript of tthe record offered in evidence by the plaintiffs,on the ground that it is not a full .and complete transcript as appears by the certificate of the clerk, which certi,fies that the document offered is a. full and complete transcript of the record -■and proceedings, executions, and returns thereon by the sheriff, except the two first executions, which have not been returned. Subsequently,, as.appears by .the transcript, there were two executions successively . issued, .which we are ■bound to presume would not have been done, except in due course of law according to the practice in the State of Alabama, and that the unreturned execu¿tions were no obstacle to tho issuing of those which were subsequently issued. We do not consider thiafact to bo an objection to the admissibility of-the transcript, which is properly certified and authenticated.

The record being properly in evidence, there is nothingvin the..pleadings by -which the effect of tho judgment itself can be impaired by the .proceedings had under it, with one single exception. Tho defendant is entitled to a credit of §176 44, on the 6th of May, 1844, being the amount made under one of tho executions. In this particular the judgment appealed from must be altered ; and, as we on all occasions render our judgments in the. simplest form,we at once impute that sum to the first interest due, and postpono, the period-from which ¡tho interest commences for a proportionate time, to wit, from April 3, 1837, till the 15th of July, 1839. By. the laws of Alabama the plaintiffs are ontitled to interest at eight per cent.

It is therefore decreed that the judgment appealed from be amended,-so that the plaintiffs recover from tho defendant the sum of §971 61, with "interest thereon at eight per cent per annum from the 15th of July, 1839, and §13 56 eosts ; the plaintiffs paying , tho costs of this appeal, .and the defendant those of the court below.


text:
    Millaudon v. Beazley.
    An absentee, wlio owns property in this State specially mortgaged, may be proceeded against judicially by the mortgagee, on being represented by a curator ad hoc. C. C. 57. C. P. 116.
    No amicable demand is required whore the action is aga'inst an absentee. In such a ease, it is impracticable.
    A cnratoi' ad hoc .appointed to represent an absentee may acknowledge service of citation and petition Such an acknowledgment is not a waiver of any right of the absentee.
    The acknowledgment of a debt made by one of two debtors in solido, or the institution of a suit and recovery of a judgment against one of them, will interrupt prescription as to the .other; but it will commence immediately after the interruption, .to run again as to the latter.
    APPEAL from tlie District -Court of Ouachita, Curry, J.

      JR. W. JRickardson, fo.r the plaintiff. Baker, .curator ad hoc, for the .appellant.
   The judgment.of .the court was pronounced by

King, J.

The plaintiff has instituted this .action against the defendant Beazley, upon two joint and several promissory notes, payable to order, made by Beazley 8f Day, and secured by a special mortgage. He prays for a judgment .for the amount remaining due, and for a sale of the undivided half of the hypothecated property owned by the defendant.to satisfy the debt. The defendant beingan absentee, a curator, ad hoc was appointed by the judge belo.w.to represent him in the defence of the suit. On .the 23d of December, 184,4, the curator acknowledged service of the petition and citation. At the next ensuing term of the court he filed an exception, praying for the dismissal of the cause,on the ground that the appointment of acurator to represent the'absentee was unauthorised by law, and pleaded further the want of amicable demand. The exception was overruled, and the cause continued until the next term of the court, for the purpose of enabling the curator to correspond with the absentee.. After the expiration of this delay a plea to the merits was filed, and subsequently, in an amended answer, the prescriptions of one, three, and five years were specially pleaded. The defendant’s plea of prescription was overruled, and the plaintiff having proved the execution of the notes, and exhibited in proof tire mortgage on which the action is founded, a judgment was rendered in his favor for the amount,of his demand, from which the defendant, by his curator, has appealed.

The objection made that the defendant could not be brought into court by a curator ad hoc, was properly overruled. The defendant owned property in the State,.which .was specially mortgaged tp secure the plaintiff’s claim, and in such cases our laws expressly permit absentees .to be proceeded against judicially., upon being.represented by a curator ad hoc. C. C. 57. C. P. 116. The plea of want of amicable, demand was also correctly overruled. The defendant -being an absentee such a demand was impracticable.

In addiüou to the defences specially setup in the pleadings, the curator ad. hoc contends, in this court, that, as the representative of the absentee, he was without authority to waive a service of citation and of a copy of the petition; that there has been no service on him by which the defendant has been brought into court, or the prescription interrupted; and he relies upon the cases of Hill v. Barlow, 6 Rob. 142; Carpenter v. Beatty, 12 Rob, 540; and Hyde v. Crad dick, 10 Rob. 387. With regard to tho questions touching tho authority of curators ad hoc determined in those cases, we express no opinion. None of the cases cited decide the point presented in this suit. Tho curator in the present instance, as far as appears from tho record, waived none of the rights of the party whom ho was appointed to represent. There was no waiver of citation nor of service of the petition, but tho -written acknowledgment of the curator is that both wore served upon him. The service thus acknowledged was made on tho 23d of December, 1S44, and at that date brought .the defendant into court, and operated an interruption of tho prescription.

The first of the -notes upon-which this action is based, matured on the 1st of January, 1839, and the second on tho 1st of January, 1840. The service of citation we have said was made on the 23d of December, 1844, moro than five years after tho maturity of the first note. Consequently prescription had accrued, as regards that note, prior to tho inception- of this suit, unless an interruption within that time be shown. To establish such interruption the plaintiff l-eiios on the acknowledgment made by the curator of the .vacant estate oí Day,ono of the joint and several co-obligors, on the -13th .of Juno, 1839, and -on a suit also instituted against that curator on-the 2d of October, 3838, for a-salo of the mortgaged property, which resulted in a judgment on the -13th of the same month. If it be conceded, as contended for, that tho acknowledgment in tho one case, and the citation in tho other, interrupted tho prescription, it commenced again immediately to run as to this defendant, and was completed before the commencement of tho present action. The court bolow erred in overruling the plea of prescription, as rogards the note which first matured- In relation to the seeoud it was .correctly disregarded.

Tho judgment of the District Court is therefore reversed. It is further decreed that the plaintiff recover of tho defendant the sum of $3,333 33J, with ten per cent interest from tho 1st of January, 1840, until paid. It is further-ordered that the plaintiff’s mortgage bo recognised and enforced on a tract of land situated in the town of Monroe, bounded by Grand street in front, and below by Grammont street, back by the Ouachita river, and above by a line about ten feet from the line dividing said premises from a lot of John J. Ca’oecns, and including the building known as tire Monroe hotel, together with the other build.ings and .appurtenances, with the exception of a Jot sold by Henry O. McEnery to Samuel Kirby, as described in the act of mortgage ; and that the undivided interest of one half, owned by said Beazley in said property, be seized and sold to satisfy said debt. It is further ordered that the defendant pay the costs of tho .court below, and the plaintiff tho costs of this appeal.


author: Xing, J.

text:
    Taylor et al. v. Hotchkiss.
    A judgment rendered,against defendants jointly, and registered in that form, cannot be enforced against property, in tho hands of a third, possessor, as a judgment in solido. Per Curiam: Mortgages only have effect against third persons as they are registered. Third persons are not required to look,beyond the register, to-asccrtain -whether the character of .the mortgage differ from that-exhibited on tho hooks of tho mortgage office.
    Appeal from the District Court of Caddo, Olcoil, J.

      Crain and R. Jones^ for the appellants. Wood and Ijandrum, for the defendant.
   The judgment of the court was pronounced by

Xing, J.

The plaintiffs obtainod a judgment against Green McNeill, which thoy seek to enforce on property owned by Green at the date of the judgment, and sold by him to the.present defendant, Hotchkiss, subsequent to the inscription of the judgment in the mortgage office. The judgment is joint in .its form; .but tho plaintiffs contend that it should be construed with reference to.the allegations of tho petition in which the parlies were alleged.to be jointly .and severally liablo, and that .effect should be given to it against the third possessor us ,a judgment in solido. Mortgages only produce effect against-third ¡persons as they are recorded in tho office provided by .law for that purpose. Third parties are not required to look beyond the register for the purpose of .ascertaining whether the character of a mortgage differs .from that exhibited on the books of the mortgage office. 4 Rob. 7. Jartroux v. Dupeire, ante p. 608. The judgment of the plaintiffs was registered in the form in which it was rendered, which is joint, and only gave notice of an encumbrance upon the ¡-property,of Green for one half of its amount. Beyond-that sum it cannot be enforced on .the property of the defendant.

From the evidence it appears that tho portion of the judgment for which Green appeared by the inscription to be liablo, has been satisfied by executions issued against him. Judgment affirmed.


text:
    Cane et al. v. Alley.
    The immovable property of tho.husband ie tacitly -mortgaged for the re-payment of paraphernal funds of tho wife received by him daring marriage; and -this mortgage takes effect as to third persons, without registry, from the time when the funds -were received.
    Appeal from the District Court of .Caddo, Taylor, J.

      Grain, for the appellants. Terrell, for the defendant.
   The judgment .of the court was pronounced by

King, J.

The defendant, Martha Alley, obtained .a judgment against her husband for.a sum,of money belonging to her in her separate right, received by the latter after .the marriage; andintho judgment, a mortgagewas recognised in her favor, to take effect.from the 28th May, 1835. At a -sheriff’s sale of her husband’s property made in virtue of an execution issued under .this judgment, Martha Alley became the purchaser of a tract of land. The plaintiffs obtained a judgment, -in 1840, against/. H. Alley, the husband oí Martha, which was duly recorded in .the mortgage office, prior .to the .date.of .the j-udgmentpf Marika Alley against her husband. The plaintiffs seek in this action to enforce their judgment upon the land acquired by the defendant, Martha Alley, at the sheriff ’a .sale .of .her .husband’s property. There was a judgment .for the defendant in the .court belo.w, and .the plaintiffs have appealed.

The only questions presented -are, whether a tacit .mortgage exists on the property .of the husband for paraphernal funds of the wife received by the former during the marriage, .and .whether this mortgage takes effect to the prejudice of third persons, without registry. These questions have been repeatedly .decided .in the affirmative by the late Supreme Court, and the principles were re-affirmed by us in-the case of Fisher v. Fisher, ante p. 774. The jurisprudence of the State upon thoso points is too well settled to be now disturbed. Pain v. Terrel, 10 La. 300. Turner v. Parker, 10 Rob. 154.

Slideli., Justice, said that he did not assent to the correctness'of tliedoctrine that, the mortgage in-favor of the wife in case of paraphernal claims, exists against creditors without registry, considered as an abstract proposition. But he gave his conciirrence to the opinion in- this cause upon the ground of authority, as a doctrine established by a long course of decisions, and which-had become a rule of property. He alluded to the argument- of the counsel for Staunton, reported in Turner v. Parker, 10 Rob. 159, and stated that he-felt bound-to yield his own opinion to tho force of authority.

Judgment affirmed.


text:
    Douglass v. Craig.
    fflie exclusive riglit'grantod-tb tho corporation of the town of Shrbveport, tiy sec. 6 of tho ‘ stat. of 20 March, 1830-, to establish fon-ios across tho Rod river within the limits of that"town, was not repealed by any thing in the stat. of 24-'3?ebruaiy, 1843, creating tho parish-of Bossier.
    APPEAL from the District Court- of Bossier; Taylor,- J.

      Crain, for the' appellant,
    cited stat. of 20'March, 1839, s. 6, Bui. and G.’s Digest, verbo' Ferry. 16 La. 585:

      Wood and Terrell, for the defendant,-
    relied on B. and Cl’s Dig. p. 641; act 25'March, 1813, s. 5. 5 La. 294: 3'Mart. 375! 11 La. 5"85, 588. Act 24-Feb; 1843.
   The judgment of the'court was pronounced by

King, J.

In 1839 the legislature granted to the corporation of Shreveport the exelusive'right of establishing ferries across Red river within the limits of that town, and to the'revenues arising therefrom-. Acts 1839, p. 294, §j,6. In virtue'of this authority the corporation established-a-ferry within its limits, of which-the plaintiff- is the lessee, running to tho opposite shore, which is one of thej boundary lines of the parish of Bossier. In 1843, (Aets p. 19,) the parish of Bossier was created; and, among tho powers granted to-its police jury, was that of- establishing ferries across tho lakes and rivers within that parish. A ferry was established under this authority across Red river, immediately opposite to the town of Shreveport, and leased to tho defendant, who was using it for purposes of profit, when he was restrained by an injunction obtained by the plaintiff, who claims the exclusive privilege of a ferry at that point, and damages which he alleges he has sustained by reason of the illegal acts of tho defendant. Tho injunction-was dissolved in the court below, and the plaintiff has appealed.

The exclusive right granted to- the corporation of Shreveport to establish ferries across the Red river within its limits, was not repealed by the subsequent act of 1843; creating the parish of Bossier. There is no express- repealing, clause in the latter act, and' we do not understand that the legislature^ in creating a parish-and conferring upon its local authorities the powers which they would equally have had under the general law if those powers had not been specially granted, intended to repeal this special privilege given to the corporation. There is no conflict between tho two acts. They both- exist, and' must be construed together. The power to establish ferries, granted to the polico jury of Bossier, must be subordinate to that conferred upon the town of Shreveport, within the corporate limits of the latter. Bank of Louisiana v. Farrar, 1 Ann. Rep. 54. We think that the injunction ought to have been maintained. The evidence is too vague to enable us to award damages to the plaintiff.

The judgment of the District Court is therefore reversed. It is further ordered that the injunction obtained by the plaintiff be maintained, and that the defendant be perpetually enjoined from-running a ferry boat across Red river, within the limits of the town of Shreveport, or otherwise interfering with the rights of ferry of the plaintiff, as the lessee of the corporation of Shreveport. It is further ordered that the defendant pay tho costs of both courts, to be taxed.


text:
    Friedlander v. Myers.
    Ail affidavit for an attachment, which states thatthe defendant '■ is justly indebted to plaintiff in the sum of (mentioning the amount) for services rendered and to he rendered by deponent as clerk, part due, and a part of said sum not due; and that deponent verily believes said defendant has left tho State to reside permanently oat of it,” is insufficient to sastain an attachment for any amount. Per Curiam: As regards the amount not duo, the affidavit is clearly defective. To attach for a debt not duo, the creditor must swear that the debtor is about to remove his property out of the State before tho debt becomes due. As to the amount due, the affidavit is defective for uncertainty. To attach in any case, the creditor must declare on-oath tho amount due to him. C. P. 240, 243, Stat. 7 April, 1-S26, section 7.
    Appeal from the District Court of Caddo, Olcott', J.

      Terrell, for the plaintiff. Murray, curator ad hoc, appellant, fro se. Crain, on the same Side.
   The judgment of the court was pronounced by

Slidell, J.

This suit was instituted by attachment, and' there has been no personal service of citation. The attorney appointed to represent the alL sent defendant moved for a dissolution of tile attachment, upon the ground of the insufficiency of the affidavit. The affidavit is that, “Myers la legally and justly indebted to the plaintiff in the sum of $578 40, for services rendered, and to be rendered, by deponent as clerk, a part due, and a part of said sum not due. And further, deponent says that he verily believes that said W. L. Myers has left the State of Louisiana, to reside permanently out of the State.”

The affidavit gives no information as to what is due and what not due. So far as regards the amount not due, the affidavit is clearly defective. To attach for an- unmatured indebtedness, it is indispensable that the creditor should swear that the debtor is about to remove his property out of the State before the debt will become due. As regards the amount of indebtedness due, the affidavit is defective, for uncertainty. To attach in any case, the creditor must declare on oath the amount due-to him-. Here the amount due is not stated. C. P. 240, 243. Act of 1826, p. 170. Attachment is a rigorous remedy, and tho creditor who resorts to it must strictly observe the formalities prescribed. They have not been observed in the present case, and the attachment cannot be sustained for any amount whatever.

It is therefore decreed that the judgment of the court below be reversed, and that the attachment be dissolved, and tho suit dismissed as in case of non-suit; the appellee paying the costs in both courts.


text:
    The State v. Peterson.

      By permitting an application for a change of venue, supported by affidavit, to be filed, the' prosecuting attorney does not thereby waive his right to oppose its being granted. Stat. I June, 1846, ss. 9, 10.
    The jurisdiction of the Supreme Court in criminal cases being limited to questions of law (Const art. 63),. it cannot examine the evidence introduced on the trial, though reduced to writing below and brought up with the record, to determine whether the court exercised its discretion properly, in refusing a new trial on the ground that the verdict was-contrary to the law and evidence.
    The caption forms no part of an indictment, and is not essential to its validity. Per Curiam: Captions are of frequent occurrence Under the english system, where it is not unusual to-try an indictment in a different court from that in which it was found. Under onr law the accused is invariably tried by the court in which the indictment was found, and the necessityfor a caption, technically so termed, cannot arise, if indeedit ever becomes necessary,, under onr system of courts, until an appeal is taken.
    Judgment will not be arrested on the ground that neither tlio place where the court was held, nor the name of the judge who presided at the court at which the indictment was found, nor the names or number of the grand-jurors who concurred in finding it, are set out in the caption of the indictment, where the schedule in the reeord sets forth those facts.
    It is not necessary that an indictment should contain a distinct averment of the appointment, and oath, of the foreman of the grand jury.
    Where one indicted for murder is convicted- of manslaughter, it is not necessary that the verdict of the jury convicting him of manslaughter, should negative tho murder. Stat. 20-March, 1818, s. 1.
    Appeal from the District Court of Catahoula, Mayo, J.

      Richardson, District Attorney, for the State. G. S■ Suwycr, for the appellant.
   The judgment of the court was pronounced by

Kino, J.

The defendant was indicted for murder and convicted of manslaughter, and from the judgment rendered upon the conviction he has appealed. He complains that an application made by him1 for a change of venue, a motion for a new trial, and a motion in arrest of judgment, were improperly overruled by the court; and on those grounds asks for a reversal of the judgment.

The defendant made a written application for a change of venue, on the ground of prejudice in the public mind in the parish in which the indictment was pending, and accompanied the application with the required affidavit. The application was notified to the district attorney, and on the same day filed by the clerk. It is contended that the district attorney, by permitting the application to be filed, waived his right to oppose it. The authority relied on does not, in our opinion, support this position. The practice of the english courts appears to be, after the application and oath have been made, to move the court for a rule to show cause why the suggestion of partiality should not be entered on the record, as unopposed, in order to have a trial in the adjoining county. When the ruléis made absolute, a suggestion, which is the order of the court, for the change of venue is entered on the record, and this order is not traversable. But this entry is only made upon cause being shown that it is necessary, and upon reasonable notice to the opposite party. 1 Chitty, Criminal Pleading, 495. The assent of the district attorney to the necessity for a change of venue, and an order of the court granting it, are not to be presumed from the mei’B'fáct of’ permitting an application in writing, which could as well have been made orally, to be filed. Such an inference is repelled by the record itself. On the same day that the application was notified to the district attorney itwas filed, considered by the court, and,-after hearing evidence and arguments of counsel, overruled. It is evident that the object of the filing was merely to put the court in possession of* the written- motion-, in relation' to which evidence was-about to-be heard, and'that the judge made no order, and intended to make none, for the removal of the cause, as upon the default of the district attorney, but intended to liear the opposition of the counsel of the State, if any he desired to make. The action of-the court was'in conformity with the practice contemplated by our statute. Acts of 1846, p. 109, ss. 9, 10. The recoi'd furnishes us with no means of determining whether the judge erred in overruling the application.

After conviction a motion was-made for a new trial, on the ground that the verdict of the jury was contrary- to the law and the evidence-; and we are urged to-examine-the evidence, which was reduced to writing on the trial and has been brought up with the record, in order to determine whether the judge properly-overruled the motion. Our jurisdiction in criminal cases is limited to questions of law alone. Constitution, art. 63We are uot permitted to examine the evidence for the purpose of determining whether the court properly exercised its- discretion-in -refusing a new trial, or whether the verdict of the jury is not supported by the evidence, which was admitted without objection. The question-is one-of-fact, in-relation to-which we are- not permitted íü en-quire- or to determine.

A motion was made in arrest of j udgment on the following grounds, viz : 1st. Neither the place where the court was held% nor the'name of the justice'"who presided at said court, at which the indictment was found, are set out' in the caption of the indictment. 2d. Neither the names, nor the number of the grand jptors who concurred in-the finding of this bill-of. indictment, are set-out in the caption-of-the same. 3d. There is no evidence of the appointment or oath of the foreman of the grand jury, nor that he ever-was appointed or sworn,- contained in said bill of indictment.

The caption forms no part of an indictment, and is not essential to-its validity. It is prepared after the finding of the indictment, and consists of a history of the proceedings extracted-from-the schedule which accompanies the indictment, when the latter is transmitted to a higher court. Captions are of frequentoceurrence under the english system! where it is not-unusual to try indictments in different courts from those in which they are found. Under our law the acsused. is- invariably tried by the court in which the indictment is found, and the necessity for a caption, technically-so termed, cannot arise, if indeed it ever becomes necessary, under our system of courts, until an appeal is taken.

The sehedule which accompanies the record in the present instance sets forth every fact which it is contended should be exhibited by the caption. The style of the court, the name of the judge who presided, the time and place where the court was held, the names of the grand jurors, fifteen in number, and the facts that the latter, including the foreman, were sworn and charged, and presented the indictment on- which the accused was tried, are all distinctly stated.

That part of the indictment in this case which has been treated in argument as a caption, is not a caption properly so called. It consists of a preliminary-statement of many of the facts usually recited in a caption, the whole of which might be stricken from the instrument without affecting its validity.

'No 'distinct averment in the indictment of the appointment and-oath óf'the foreman, is necessary.

It is urged that the verdict of the jury convicting the accused of manslaughter should have negatived the murder. This was not necessary. Our statute authorises such a.verdiet. Bul. and Curry’s Dig. p. 260.

■ Judgment -.affirmed.