source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    John Corbett v. M. Costello et al.
    Action on a written contract, leasing “ the ground floor oí the brick building on the corner of Lafayette and New Levee streets,” &c. The answer set up, that all the premises leased were not delivered. Parole evidence was admitted “ of the acts and declarations of the defendant showing that the apartment occupied by him was the only part of the ground floor to which he was entitled under the contract, according to the understanding of the parties.” To the admission of this evidence a Bill of Exceptions was taken. BytJieCow't: The objection to the admissibility of the evidence is not tenable. The Code of Practice, art. 829, provides: “when the defendant in his' ^answer alleges, on his part, new facts, these shall be considered as denied by the plaintiff—therefore neither replication nor rejoinder shall be admitted.” Under this provision it was perfectly competent for the plaintiff to show in what manner the delivery of the property had been effected, particularly as the defendant had put the matter at issue by his answer.
    Appeal from the Fourth District Court of New Orleans, Reynolds, J.

      Dorsey, for plaintiff.

      Collins, for defendants and appellants.
   Voorhies, J.

This is a suit instituted by the plaintiff to recover rent on the following written contract of lease, viz :

“Know all men by these presents, that John Corlett doeshere by lease unto Mao-tin Costello the ground floor of the three story brick building on the corner of Lafayette and New Levee Streets, for the full term of three years from the 1st day of October, 1852, to the 1st day of November, 1855. The conditions of this lease are, that the said Martin Costello shall punctually pay, or cause to be paid, unto the lessor or his legal representatives, the annual rent of eight hundred dollars, payable monthly, and at the expiration of this lease deliver said premises to said lessor in the same good order and condition in which he received them, the ordinary wear and tern- and other unavoidable causes excepted. It is also a condition of this lease that the said lessee shall make all repairs at his own costand expense, and comply with all police regulations.”

The only ground of defence set up is, that the lessor has failed and refused to deliver to the lessee possession of the whole premises according to the terms of the contract, the lessor having kept possession of the greatest portion of said premises, thereby compelling the lessee to withdraw entirely from the property leased.

It is contended by the defendant, that he was entitled, under the contract, to the whole ground floor of the building therein described, extending in length 117 feet from Fulton to New Levee street, by 23 feet in width, one of the side lines of which bounding on Lafayette street. It appears that the plaintiff was the lessee of this property under B. Rodrigues, for which he paid an annual rent of $2500, and that he afterwards divided the ground floor into three separate apartments, one of which, on the corner of Lafmjette and New Levee stn-eets, he contends, constituted the subject of the contract of lease in question.

The ground floor had not yet been partitioned when the contract between the parties was signed. But it appears that the defendant himself marked off that part of it which he designed to occupy under the contract, and took possession thereof after the partition was erected. It appears he objected at first to the size of the apartment thus allotted to him, but afterwards acquiesced and accepted it, and occupied it during the space of two or three months as a hardware store. During the whole of that timé it is not shown that he ever complained of the non-execution of the contract on the part of the plaintiff, or that he was entitled, under it, to any thing beyond the ground floor of the apartment on the corner of Lafayette and New Levee streets. When on the eve of leaving it, he stated to one of the witnesses, “ that things were not going as he expected, and that he had concluded he would go back to the former store he had rented from Mr. Peters.” His claim to the whole ground floor of the building was asserted only since the institution of the present suit.

On the trial, a bill of exceptions was taken by the defendant to the ruling of the District Court, in admitting the testimony of witnesses to prove the declarations of the defendant and his acts, showing that the apartment occupied by him was the only part of the ground floor to which he was entitled under the contract, according to the understanding of the parties. The objection to its admissibility was placed on the ground, that it varied the written contract and diminished thereby the plaintiff’s obligations under it. It was also objected to on the ground, that it contradicted the allegations contained in the plaintiff’s petition, which were admitted by the answer; and also because no ground had been laid in the pleadings to authorize it. The plaintiff’s demand is limited to the contract sued upon, which is substantially set forth in his petition. We do not consider the objection to the admissibility of such evidence under the pleadings, tenable. The Code of practice, article 329, provides: “When the defendant in his answer alleges, on his part, new facts, these shall be considered as denied by the plaintiff, therefore, neither replication nor rejoinder shall be admitted.” Under this provision, it was perfectly competent for the plaintiff to show in what manner the delivery of the property had been effected, particularly as the defendant had put the matter at issue by his answer.

We assume as correct the proposition of the defendant’s counsel, that parole evidence is not admissible to contradict, alter, or vary a written 'instrument when entered into by the agreement of the parties. For, in the first instance, parties generally make their contracts verbally, and afterwards commit them to writing, and the presumption is that they only write what they deem material In such a case, the verbal contract being merged in the writing, it is clear that the writing cannot be contradicted, though it may be explained if ambiguous. Our rule upon this subject is substantially the same as that of the Common Law, that parole contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. There appears to be no difference in the interpretation given to it both by the Civil and Common Law Courts. In alluding to the rule, Greenleaf says : “ The writing, it is true, may be read by the light of surrounding circumstances, in order more perfectly to understand the intent and meaning of the parties; but, as they have constituted the writing to be the only outward and visible expression of their meaning, no other words are to be added to it, nor substituted in its stead. The duty of the Court, in such cases, is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words they have used. It is merely a duty of interpretation; that is, to find out the true sense of the written words, as the parties used them ; and of construction, that is, when the true sense is ascertained, to subject the instrument, in its operation, to the established rules of law.” Applying these principles to.the question presented in the present case, we are unable to discover in what respect the testimony objected to, either contradicts, alters, or varies the written instrument declared upon: no other words are added to it, nor substituted in its stead. But the object of the testimony in this case was not to contradict, alter, or vary the written instrument, but resorted to for the purpose of ascertaining the nature and extent of the subject to which it referred. “Evidence which is calculated to explain the subject of an instrument, is essentially different in its character from evidence of verbal communications respecting it. Whatever, therefore, indicates the nature of the subject is a just medium of interpretation of the language and meaning of the parties in relation to it, and is also a just foundation for giving the instrument an interpretation, when considered relatively, different from that which it would receive if considered in the abstract.” In the present case, there is some obscurity in relation to the character, or extent of the subject of the contract; the property leased is described to be at the corner of Lafayette and New Levee streets. This would seem to exclude that part of the ground floor at the corner of Lafayette and Pulton streets.

In the case of LLAquin v. Barbour, 4 An. 441, our predecessors held, “ that parole evidence was admissible to show the nature and extent of premises leased by an act sous seing privé, when from the indefinite language of the instrument, it was necessary to ascertain the intention of the parties. Where the intention of the parties is doubtful, the manner in which a contract has been executed by one with the assent of the other, will determine the construction to be put upon it.” In the case of Squier v. Stocleton, 5 An. 743, the leading rule laid down by Qreenleaf, (1 Green. No. 286,) as to the admissibility of parole evidence to ascertain the nature and character of the subject of contracts, is fully recognized. We are, therefore, of opinion that the testimony was properly admitted by the District Court.

It is also urged by the defendant, that the judgment of the District Court is erroneous, in condemning him to pay three years’ rent, as he is only bound for a monthly tenancy. The judgment appears to us to be clearly in accordance with the terms of the contract.

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


author: Buchanan, J.

text:
    Eli Whitney v. Wm. H. Bunnell.
    Action against the acceptor of a Bill payable to the order of the drawer, who endorsed it to the plaintiff. The signature of the endorser was proved by a comparison of it with that of the drawer. The Court considered the evidence sufficient—as the acceptance admitted the signature of the drawer.
    Appeal from the Fourth District Court of New Orleans, Reynolds, 3.

      Wolfe é Singleton, for plaintiff.

      Semmes & Rckoards, for defendant and appellant.
   Buchanan, J.

Tho defendant «and appellant was accepter of a bill drawn by J. Richan'ds, to tho order of himself, and by him endorsed to plaintiff.

The plaintiff gave in evidence the bill and acceptance, and proved the endorsement of tho payee by a comparison, made by sworn experts, of the two signatures “ J. Richards ” at the bottom and on the back of the bill. The experts pronounced the two signatures to have been made by the same person.

In this Court the appellant contends that this was not a case for comparison of handwriting by experts: the legal effect of the acceptance being, not so much an admission of the signature of the drawer, as an estoppel to deny the genuineness of that signature, which would preclude the acceptor from showing that the said signature was forged, even if that were a fact.

Story, in his Comm, on the Law of Bills of Exchange, paragraphs 262, 411, and 412, lays down the law on this point as follows: “ The acceptance admits the genuineness of the signature of the drawer; and consequently, in favor of a bona fide holder for value without notice, if the signature of the drawer turn out to be a forgery, the acceptance will nevertheless be binding, and entitle such holder to recover thereon according to its tenor.” “But it is said that the like doctrine does not apply to the acceptor, in the case of the forgery of the signature of the payee, or of any other endorser, because the acceptor is not presumed to know their signatures or to vouch for their genuineness.”—“ Neither does the acceptance admit the signature of the drawer when he is an endorser also, altho’ the bill is payable to the drawer’s order, and his signature as drawer is admitted.” Eor this doctrine Story cites the authority of Robinson v. Yarrow, 7th Taunton, 455, in which it was said by ParTce, Justice— “The mere acceptance proves the drawing, but it never proves the endorsement.” And Parke quotes Smith v. GJiester, 1st Term Reports, 654, as deciding that, even if the endorsement be there, the acceptance does not admit the endorser’s handwriting, and that the acceptor is only bound to look at the face of the bill. Judge Story remarks upon these cases, that the distinction is certainly very nice, and perhaps does not stand upon very satisfactory ground, where the endorsement is on the bill at the time of acceptance.

But in the case at bar we are relieved of the perplexity of this nice distinction ; for here, the plaintiff did not rest his cause upon the presumptions arising from the defendant’s acceptance of the bill—as was done in the case in Taunton. On the contrary, he administered proof of the signature of the payee— the proof by comparison with a signature admitted by the acceptance, according to Story—proved by the acceptance, according to Pandee. And here it is proper to remark, that the authorities do not countenance the doctrine of estoppel contended for by the appellant. We have found nothing which precluded defendant from pleading and proving forgery of the signature of the drawer of the bill against the plaintiff, had the facts been so. And upon such proof made, it would have been incumbent upon plaintiff to show that he was a bona fide holder for value, without notice, before he could recover.

Upon the proof by experts, founded on comparison of signatures, see the case of Sauvé v. Dawson, 2 Martin, 213.

Judgment of the District Court affirmed, with costs.


author: Ogden, J.

text:
    James McMasters v. Lucius H. Place.
    The Act of 1820, which provides that any person who takes possession of a vacant estate, or part thereof, without being duly authorized to that effect, &c., is not applicable to the heir of an estate who has the right, if he chooses, to take possession of the estate, and dispose of it as he pleases, subject only to the legal restraint of the creditors, and under the responsibility of paying the debts of the succession.
    The sale of property belonging to an estate to which the seller has a simulated title, and the appropriation of the price to his own use—is such an acceptance of the succession as makes him liable as heir for the debts.
    Article 985 of the Code is a negative, pregnant with the affirmative, that if the heir had no title to the property sold by him other than that of heir, and no right to suppose that the property did not belong to the succession, he commits an act manifesting the intention to accept when he disposes of the property. A simulated title confers no right whatever.
    Appeal from the Second District Court of New Orleans, Zea, J.

      JS. 0. Mix, and Bonford, for plaintiff.

      Benjamin & Miaou, for defendant and appellant.
   Ogden, J.

It is sought in this action to render the defendant liable for a debt of his brother, Ransom L. Place, deceased, on the ground that he was the sole heir of his brother, and had, after his death, intermeddled with the affairs and sold the property of the succession. The defence is a general, as well as a special denial of the plaintiff’s allegations, and the averment that defendant had, by notarial act, renounced his brother’s estate! The Court below rendered a judgment against the defendant, based on the Act of the Legislature of 1830, which declares that any person who takes possession of a vacant estate, or part thereof, without being duly authorized to that effect, with the intent to convert the same to his own use, shall be prosecuted by information, and on conviction thereof shall be fined $3000, to the benefit of the estate, and shall be moreover liable to pay all the debts of the estate. We think this statute is not applicable to the heir of an estate who has the right, if he chooses, to take possession of the estate and dispose of it as he pleases, subject only to legal restraint by the creditors, and under the responsibility of paying the debts of the succession. According to that statute, if a stranger to the succession should possess himself of the estate and convert it to his own use without authority, the consequence of a conviction, in a criminal proceeding, would be to render him liable for all the debts of the estate, but in regard to the heir, a criminal prosecution could not lie, because by law he is seized of the estate, and becomes the lawful possessor whenever, under the responsibilities of heir, he enters into the possession. The case, therefore, turns on the question whether the defendant has rendered himself liable by doing some act which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir. If he has done any such act, the article 983, ot the Civil Code, expressly renders him liable. Art. 984 says: it is necessary the intention should be united to the fact, or rather manifested by the fact, in order that the acceptance be inferred. Art. 993 declares, that the sale of the least article of property belonging to the succession will render the person called to the succession irrevocably the heir, unless be cause himself to be authorized by the Judge to make the sale at public auction on a petition alleging the necessity for it. When Ransom H. Place died he was the lessee and manager of the American Theatre. He died on the 3d of November, 1850, at the defendant’s house, and up to that time was apparently in possession, as lessee of the Theatre, of the scenery, machinery, wardrobe and other property appurtenant to the Theatre. A few days after his death, to wit, on the 12th November, 1852, the defendant sold all the movables in the Theatre to Mandell and Charles, to whom, with defendant’s consent if not by his procurement, the owners of the Theatre transferred the lease of Ransom Place, having yet several years to run. The defendant endeavors to establish that the property belonged to himself and not to his brother’s succession. We agree with the Judge below that the title set up by him must be considered a simulation. The property was owned by Ransom Place in 1845, when it was seized at the suit of one of his creditors, and adjudicated to the defendant, L. H. Place and B. P. Stóchiey, but the deed recites that the notes of Ransom H. Place and Btickney were given for the price of the adjudication. Ransom Place continued in possession of the property after the adjudication. As the defendant neither paid nor bound himself to pay the price, and the possession continued in Ransom, Place as before the sale, although under a lease from the defendant, there was in reality no change of title as regards the half of it adjudicated to the defendant—the sheriff’s deed can only be viewed as a means resorted to of placing the title of the property in the name of defendant to protect it from the pursuit of Ransom Place's creditors. The sale being simulated, the question arises whether the act of selling the property and converting the proceeds to his own use, constitutes an acceptance of the succession by the defendant so as to render him liable as heir for the debts. We differ from our brother Judge in his conclusions on this point. Although the intention is required to be united to the fact, it is clear from the phraseology of article 984 referred to, that the fact may be taken as manifesting the intention—the sale, as we have seen, of the least article of property belonging to the succession without the authority of the Judge, is one of those facts which manifests the intention to accept—but it is contended that the fact here did not manifest the intention to accept, because the defendant sold the property in his own right and not in'the capacity of heir, and we have been favored with the views of several of the French commentators on provisions of the Napoleon Code similar to our own. Those authorities only go to this extent, that where a person has some title, or supposes he has a right to the property by a title other than that of heir, the disposal of the property by him is not a fact manifesting the intention to accept. This is in accordance with our Code, which has even declared it in express terms. See art. 985. But we consider it a negative pregnant with the affirmative, that if the heir has no title other than that of heir and no right to suppose that the property did not belong to the succession, then he does commit an act manifesting the intention to accept when he disposes of the property. A simulated title confers no right whatever. No action is necessary to annul it because it is a nullity in itself—and if a person, called to a succession without any other right than that derived from a simulated title, disposes of property holoDging to the succession, he renders himself liable as heir. As heir he had the right to sell, and the law will presume that he sold in that capacity only in which he could have supposed he had any right to the property. It is objected that the petition contains no allegation by which the defendant could be rendered liable as having had only a simulated title to the property disposed of.. It was not necessary, in our opinion, to make this allegation in order to sustain the plaintiff’s action.

It is, therefore ordered, adjudged and decreed, that the judgment of the Court below be affirmed, the costs of this appeal to be paid by the defendant appellant.

Re-hearing refused.


author: Campbell, J.

text:
    Ellen Harris v. James B. Hays—Catharine Guenther, Warrantor.
    It is the duty of the appellant to see 1hat the record contains all the evidence on which the case was tried. If he neglect so to do, the Court is without the means of reviewing the case, and the appeal will be dismissed.
    Appeal from the Second District Court of New Orleans, Leu, J.

      J. Q. Bradford, for plaintiff and appellant.

      O. M. Bradford, for defendant. Wm. 3. 3unt, for warrantor.
   Campbell, J.

This is a petitory action, instituted by the plaintiff, J. B. Ba/ys, for the recovery of a slave, with damages for his wrongful detention. The defendant filed a general denial, calling in warranty his vendor, Mrs. Owroline G-. Boffman. The warrantor interposed, among other exceptions, that of lis pendens, which was sustained and the suit dismissed; from which judgment the plaintiff has appealed.

Wo are unable to reverse this judgment, inasmuch as the record contains no part of the evidence on which it was rendered, notwithstanding the certificate of the clerk that it is a complete transcript of all the documents filed, of all the evidence adduced, and of all the proceedings had on the trial.”

Under this state of the case we would feel bound to reverse the judgment if the record itself did not disclose the fact that evidence was adduced on the trial, and the consequent falsity of the certificate. That the error in the certificate resulted from inadvertence we are willing to believe, yet we deem it proper at the same time to express our disapprobation of the inexcusable negligence of the officer who granted it.

It may further be remarked that the plaintiff has offered no explanation of the fact of his having filed a record, which, though certified to be complete, appears by his own averments, contained in his application for a new trial, to be imperfect—being content, as it would seem, to rest his hopes for a reversal of the judgment, on an irregularity, not of his opponent, but imputable rather to himself. He cannot profit by his own wrong. It was his duty to bring up the evidence on which the case was tried. Not having done so, the Court has not the means of reversing the judgment appealed from; but must presume that it was rightly rendered, and on sufficient evidence.

The appeal is, therefore, dismissed at the costs of the appellant.

Re-hearing refused.


author: Slidell C. J.

text:
    The State v. The Judge of the Fifth District Court.
   Slidell C. J.

After the order was made and signed, granting a suspensive appeal and approving the bond furnished by the appellant, we think the jurisdiction of the District Court was incompetent to disturb the order. See Pemberton v. Zacharie, 4 Louisiana, 205.

It is, therefore, ordered, &e., that a writ of prohibition issue in this case, as prayed for in the petition.


author: Slidell, 0. J. Ogden, J.

text:
    John Winthrop v. Stephen Jarvis.
    An executor may bind himself individually for a debt of the succession; and where the promise is made to pay the debt at a specified time, it is not merely an acknowledgment of the debt, but is a contract which may be enforced against him individually, although the promise be made by him in an instrument in which he describes himself as executor.
    Defendant pleaded certain claims in reconvention, but evidence in support of them was excluded, on the ground that they were not connected with plaintiff’s demand. By the Cowrt:—We think it should have been distinctly alleged in the reconventionai plea that the obligation signed by defendant was the result of a general settlement which was intended to embrace all debts and accounts between the parties. The evidence was, therefore, properly excluded.
    Appeal from the Eifth District Court of New Orleans, Buchanan, J.

      Josephs, for plaintiff.

      Durant & Horner, for defendant and appellant.
   Slidell, 0. J.

The obligation, upon which the suit is brought, is an express promise on the part of the defendant to pay to the plaintiff the total of certain amounts acknowledged to be due to him by the defendant individually and as executor of N, Ja/rvis. The exception that the suit for that portion of the amount which was due by the succession of Pfathan Ja/rvis should have been instituted against ’the defendant, as executor, was properly overruled. An executor may bind himself individually for a debt of the succession, and where the promise is made to pay the debt at a specified time, it is not merely an acknowledgment of the debt, but it is a contract which may be enforced against him individually, although the promise be made by him in an instrument in' which he describes himself as executor.

The defendant pleaded certain claims in reconvention, but evidence in support of them was excluded upon the objection that they were not connected with the plaintiff’s demand.

We think it should have been distinctly alleged in the reconventionai plea, that the obligation signed by the defendant was the result of a general settlement, which was intended to embrace all debts and accounts between the parties. Eor want of such averment, we think the" District Judge did not err in refusing to receive testimony in support of the reconventionai demand.

The defendant will not be precluded from bringing his action upon the claims alleged in his plea.

Judgment affirmed, with costs.

Vookhies, J., Buchanan, J., and Campbell, J., concurred with Slidell, C. J.

Ogden, J.

(dissenting.) I consider the defence to he, substantially, that the obligation sued on was the result of a settlement of mutual accounts between the parties, designed to embrace all their respective claims, and that through error the obligation was executed for a larger amount than was due to the plaintiff, in consequence of the omission of two items of indebtedness on the part of the plaintiff, which were unknown to defendant at the time of the settlement. The claims on both sides were equally liquidated and demandable previous to the execution of the obligation, and the compensation, to the extent of the mutual indebtedness of the parties to each other, took effect ipso jure. An obligation given through error for a debt already extinguished by legal compensation may, in my opinion, be resisted by a plea in reconvention, without violating the principle which requires, that the reconventional demand should be incidental to or connected with the principal demand—being a defence to the action, it is necessarily connected with the plaintiff’s demand.

For these reasons I have not been able to concur fully in the opinion just had.


text:
    John W. Rollins v. Jerome Watson—Elliot, Intervenor.
    Intervenor, as agent of one Creme, a creditor of Watson, received two horses from Watson, with the understanding that Intervenor should sell them, and if the horses sold for more than Creme's claim, the surplus should be paid to Watson—if for less, Watson should make up the deficit. On an attachment against Watson, the horses were seized, and the Intervenor claimed them as his property. By the Court:—It cannot beheld that the intervenor owned the horses either by sale, or dation engagement, there being no price—no sufficient consideration to sustain such a transfer. Nor yet can he be regarded as pledgee—for the delivery not being accompanied by an act either in public form, or under private signature, did not invest him with the right of causing his debt to be satisfied by preference.
    Appeal from the Second District Court of New Orleans, Zea, J.

      Thomas Hunton, for plaintiff.
    TJpton, for appellant
   Campbell, J.

On the 3d January, 1853, plaintiff instituted suit by attachment against the defendant, Jerome Watson. Under the writ issued in this case, certain horses were attached, two of which the intervenor, Joseph Elliot, claimed by third opposition, as his property, by virtue of a transfer from defendant, made December 31—the horses having been, as he alleges, taken from his possession after their delivery. The third opponent further claimed damages and obtained an injunction inhibiting the sale of the horses thus seized. The property attached having been sold, the proceeds of the sale remain in the hands of the Sheriff, subject to the claims of the respective parties.

A rule was taken by the plaintiff on the intervenor to show cause why the injunction should not be dissolved, to which exceptions were filed but subsequently withdrawn, and, by consent of parties, the merits of the case, involving the ownership of the property attached, wore tried upon the rule.

Judgment was rendered dismissing the intervention and dissolving the injunction, with damages; from which judgment the intervenor has appealed.

On the trial the intervenor failed to establish his title to the property attached, and from the testimony of the witnesses, it would seem that he held it as mandatory, rather than as owner.

It appears that the intervenor, as agent of one Grane, a creditor of the defendant, received from him the horses in question, agreeing, in the language of the witness, to “take and sell them and apply the proceeds to pay Crane's debts; and if there was any surplus, to pay it over to Watson; if not, Watson would pay the difference.” This debt, (the consideration of the alleged transfer,) was evidenced by a note then and yet in the possession of Elliot, he never having delivered it to defendant. It was produced by him at the trial, and one of the witnesses, Edgell, deposes that, after the sale, intervenor stated that the horses had been placed in his hands for sale, and that he had no interest in them—that if he did not succeed in the suit, he still held the note.

Under these circumstances it cannot be held that the intervenor owned the horses either by sale, or elation enpaimnent, there being no price-—no sufficient consideration to sustain such a transfer. Nor yet can he be regarded as pledgee ; for the delivery not being accompanied by an act, either in public form, or under private signature, did not invest him with the right of causing his debt to be satisfied in preference. 0. C., art. 3124-5 ; Session Acts, 1852, p. 15, sec. 2. The intervenor might, perhaps, under the agreement, have sold the horses and imputed the price to the payment of the debt due him ; but this he would have done as agent, for until the sale and delivery, the ownership remained in the defendant, and the object continued subject to seizure for his debts.

Judgment affirmed.


author: Campbell, J. Slidell, C. J.,

text:
    L. A. Pellerin v. J. C. Levois et al.

      By the Court: When the record comes up without the evidence, nothing can be assigned as error in the Supreme Court that could have been cured by evidence in the Court below.
    The defendant, in injunction, is under no obligation to have the evidence taken down in writing for the use of his adversary—in case the latter should wish the appeal.
    Appeal from the Second District Court of New Orleans, Lee, J.

      Schmidt, for plaintiff and appellant.

      Bengannin & Miaou, for defendant.
   Campbell, J.

On the petition of the appellant, L. A. Pellerin, a writ of injunction issued from the Second District Court of New Orleans, April 15, 1852, inhibiting J. C. Levois, the appellee, and the Sheriff, from proceeding further in the execution of a writ of seizure and sale, issued in the suit of J. C. Levois v. Pellerin, On the 22d April, the defendant obtained a rule on plaintiff to show cause why the injunction should not be dissolved, on the ground that the writ issued in the case was a second writ, issued on a petition containing the same allegations, the first injunction having been dissolved by a judgmeut of said Court, which judgment was, on appeal, affirmed by the Supreme Court.

We are unable to revise the judgment complained of, as the transcript does not show the grounds on which the first injunction was dissolved. The appellant has failed to bring up the evidence, or a certificate, in relation to it, and it is well settled that when the record comes up without the evidence, nothing can be assigned as error which could have been cured by evidence in the Court below. The defendant, in injunction, was under no obligation to have the evidence taken down in writing for the use of his adversary, in case he should wish to appeal.

Under the circumstances, we must infer that the District Judge had before him evidence sufficient to sustain the judgment.

Mollin v. Thompson, 9 M. R. 275. Miller v. Whittier, 6 L. 72. Cox v. Bethany, 10 L. 154. Fowler v. Smith, 1 R. 448.

The appeal is, therefore, dismissed at the costs of appellant.

Schmidt, for a re-hearing:

As it appears to the undersigned that the opinion delivered in the above cause is predicated upon an error of fact, it becomes his duty to apply for a re-hearing, for the following causes and reasons :

First. Because it is a mistalce to suppose that the record does not contain all the evidence on which the cause was tided in the lower Court.

The Court say, “ That they cannot review the judgment complained of, as the transcript does not show the grounds on which the first injunction was dissolved.”

Such a knowlege is no doubt requisite to the decision of the cause; but the Court will not, it is presumed, punish the appellant for the omission to furnish that evidence, unless the omission be attributable to his fault or neglect.

The appellant is bound to furnish a correct transcript of all the evidence and proceedings of the inferior Court, in the cause in which he appeals. If he has done this, he has performed his duty; and to require more, would be to exact something which the law does not authorize.

The Court further say, “ The appellant has failed to bring up the evidence, or a certificate in relation to it; and it is well settled, that when a record comes up without the evidence, nothing can be assigned as error which could have been cured by evidence in the Court below.”

The conclusion is indisputable, if the fact from which it is deduced be true ; hut that fact has no existence; ergo, the conclusion is not applicable in this cause.

The appellant has brought up all the evidence on which the cause was tried below, and this appears conclusively from the record in the Supreme Court.

The certificate of the clerk declares that the record contains all the documents and all the proceedings had on the trial of the rule, &c. It does not assert, his verbis, that it contains all the evidence, since it is evident from the record that no evidence whatever was offered.

Gentlemen so familiar with the practice of the District Courts as the members of the Supreme Court, need not be told that the introduction of evidence, whether oral or written, is a proceeding in the cause; and that the record, containing all the proceedings, must necessarily show whether any evidence was offered, and by whom. This is a formality which is never omitted by the clerk, because the law allows him compensation for swearing witnesses and registering documents ; and, where the record makes no mention of the offering of evidence by either party, it is morally certain that none was offered.

If any evidence was offered on the trial below, it must be conceded that such evidence was either verbal or documentary; it could not have been documentary, because all the documents are in the record; and it could not have been verbal, because if a witness had been introduced, mention of it would have been made among the proceedings. Fairly, to come to any other conclusion, appears to the undersigned impossible.

Should there, however, still remain the shadow of a doubt on the subject, it must vanish.upon looking at the entry on p. 11 of the record, where the clerk declares, that '■'■after argument of counsel, ” the cause was submitted.

If the Court will take the trouble to examine the various records in their archives, they will find that the clerk invariably, when proof is offered, says, “after heariny-evidence and argument of counsel,” and no minute clerk would omit to mention the production of evidence, if it had been produced.

Presumptions, in opposition to the usual and regular manifestation of a series of facts, are entitled to no weight, and lead to no safe or probable conclusions. They should be disregarded, as mere vague conjectures; and, as the presumption in this case is, that if evidence had been adduced, mention would have been made of it somewhere ; the Court must conclude, in conformity with the truth, that the evidence wanted to enable it to decide the cause, and which should have been furnished in the lower Court by defendants, was never offered.

That this is true, was not denied by the counsel of the appellee, on the argument of the cause, and ho attempted to show that its production was unnecessary, because the records of a Court wore always open for the inspection of the Judge of the Court who might refer to them, although not in evidence in a case like the present, where the object was simply a comparison of two petitions. Had the fact been as the Court suppose, it is not to be doubted that he would have insisted on the dismissal of the suit on that ground, but he did not even pretend to do so, for the obvious reason that the record was complete.

There is another fact connected with the record in this cause, of which the Court is unquestionably ignorant, and which forbids the appellee from availing himself of any defect or incorrectness of the Record. It is this, viz: the record in this cause was brought up and filed by the appellee himself. Tt appears, that the appellee, apprehensive that if he waited for the return day of the appeal, he might be frustrated in his expectations of having it tried at the term at which it was made returnable, caused the record to be made out and, filed it himself in this Court. If he, therefore, has filed an incomplete record, it is his fault, not ours, and it would not be just or equitable to let himprofit by his own wrong. This would be a fraud on plaintiff, which we are sure the respectable counsel of defendant would scorn to perpetrate, and of which they would not avail themselves, even if the Court were disposed to sanction it—a thing not supposable.

Second. It is respectfully insisted, that by no possible ingenuity of the human mind can it be fairly or logically inferred in this cause, that the judge had before him evidence sufficient to sustain the judgment.

The rule taken on plaintiff was to show cause, why the injunction should not be set aside, because one exactly similar had already been dissolved.

All the Court can possibly presume in favor of the judgment is, that the plaintiff in the rule sustained his allegation by proof. The next inquiry is, therefore, what species of proof? written, of course, since, in order to prove that one piece of writing is exactly similar to another, both must be produced. But a piece of writing is a document, and all the documents on which the cause was tried are in the record, and to presume the contrary is to presume that the clerk has certified to a falsehood. No Court would be justified in going this length in sustaining a judgment of any Court.

The reasoning of the Court in the judgment under consideration being, therefore, based on the supposed existence of a fact, which never had an existence; and upon the presumed production of a document which never was produced, unless the Clerk of the inferior Court deliberately certified to a falsehood ; it is respectfully asked that a re-heariug be rewarded.

Had it been hinted on the argument of the cause that doubts existed as to the completeness of the record, the undersigned would then have shown, as he has now had the honor to do :

1st. That a fair and attentive examination of the proceedings in the inferior Court, and the certificate of the clerk, necessarily lead to the conviction that the record is complete, and contains all the evidence on which the cause was tried below.

2d. 'That if the record, or the certificate of the clerk, be incomplete, it is not the fault of appellant, but of the appellee, who brought up and filed the record as a complete transcript of all the proceedings in the inferior Court, and who cannot avail himself of his own wrong to appellant’s prejudice; nor will the Court punish appellant for the fault of the appellee.

The undersigned regrets the necessity which forces him to occupy the valuable time of the Court in examining again a question that has already engaged its attention. He thinks himself, however, fully justified in so doing by the considerations above set foith, and being persuaded that the Court will take pleasure in correcting any error into which they may have inadvertently fallen, he has the honor, respectfully, to submit the preceding observations.

Slidell, C. J.,

(on the re-hearing.) It is ordered, adjudged and decreed that the judgment rendered by this Court, in this case, on the 6th of June last, remain undisturbed.


author: Vookhies, J.

text:
    Daniel Kennedy v. Thomas Hynes.
    Damages allowed for a frivolous appeal.
    Appeal from the Fifth District Court of New Orleans, Buohanan, J.

      Bright, for appellee.
    No counsel appeared for defendant and appellant.
   Vookhies, J.

The defendant is appellant from a judgment rendered against him on a promissory note. The general issue is the only defence set up by him.

There is no assignment of errors on the face of the record, and we have not been able to discover any other grounds for the appeal than that for delay.

The appellee prays that the judgment be affirmed, with damages, on the ground that the appeal is frivolous. Under the provisions of Article 907 of the Code of Practice, we think his prayer should be allowed.

It is, therefore, decreed that the judgment of the District Court be affirmed, with five per cent, damages on the sum of eighteen hundred and seventy three dollars and sixty cents, amount of the note sued upon, to wit: ninety-three dollars and sixty-five cents, and costs of suit in both Courts.


author: Voobhies, J. Slidell, C. J.

text:
    Moses Levy and A. Seavers v. Elizabeth Weber and Jean Tournee.
    Where an amended petition, which changed materially the action, was never served on the defendant, and its allegations never put at issue—it will not be considered as constituting any part of the pleadings.
    In suits instituted by plaintiffs against one^ Weber, an attachment was levied on a lot and buildings in possession of defendants. Defendants intervened, and claimed the property, by purchase, from Weber. Plaintiffs answered that the sale to defendants was fraudulent and simulated. Judgment was rendered in favor of plaintiffs for the amount of their claims, “with privilege on the property attached.” Execution was issued, and from the Sheriff’s return it appeared that the property attached was adjudicated to the plaintiffs. Defendants refused to give up the property, and this action was brought for property.

      By the Court: It does not appear that either of the defendants was ever notified of the sale, and as. the plaintiffs allege, they have continued to occupy the premises since the sale. It must be conceded that the proceedings in those suits were exceedingly loose and irregular. There is nothing in the record which shows that the claim of the intervenor was adjudicated upon, or that it was abandoned; neither does it appear that the intervenor had any knowledge of the judgment rendered against her vendor, recognizing the attaching creditor’s privilege on the property. In the absence of such proof, and in view of all the circumstances disclosed by the record, it is clear that the rights of the intervenor must stand unaffected. So thought the District Judge, for his judgment was chiefly based on the ground that the plaintiffs were bound to resort to the revocatory action.
    Appeal from the District Court, Third District, Parish of Jefferson, Olwrlce, J.

      Jourdan, for plaintiffs and appellants,

      Bufowr, for defendants.
   Voobhies, J.

The plaintiffs allege that they purchased a certain lot of ground and buildings, situated in the Faubourg Delassise, Parish of Jefferson, at a Sheriff’s sale on the 28th of February, 1852 ; and that the defendants having occupied said property since that time, although requested, have refused to pay rent, and to remove from the same; whereupon, they pray that the defendants be ejected from the said property, and decreed to pay them one hundred dollars damages.

The defendant, Elizabeth Weber, avers that she purchased the property in dispute, bona fide, from Peter Weber, b3r notarial act, on the 5th of March, 1851, and afterwards, on the 10th of July, 1851, conveyed one undivided half thereof to her co-defendant, Jean Journie, for a valuable consideration. Both of the defendants aver that they have been in the uninterrupted possession of said property from the date of their respective conveyances.

It appears that the plaintiffs, in a supplemental petition, attacked the conveyances set up by the defendants, on the ground of fraud and simulation. But as it does not appear that that amendment, though material, as it altered the plaintiff’s demand, was ever served on the defendants, or put at issue, it is clear that it cannot be considered as constituting any part of the pleadings in this action. The plaintiffs’ right of action must, therefore, rest on the legality of the title under which they claim.

It appears that in a suit instituted by Moses Levy, one of the plaintiffs, against Peter Weber, a writ of attachment was levied on the property in dispute.. The defendant, Elisabeth Weber, intervened in that suit, by way of third opposition, and claimed the sameby purchase from Peter Weber, on the 5th of March, 1851. Moses Levy answered the third opposition, by pleading a general denial, and averring that the property attached belonged to Peter Miller; that the pretended sale set up by the intervenor, if any such existed, being made on the eve of the absconding of Peter Millm; of which the intervenor had knowledge, was fraudulent, collusive and void ; that it was a mere simulation, and if not such, the price was far beneath the value of said property. On the trial of that case, it appears that the only judgment rendered, was a judgment in favor of Moses Levy againt Peter Weber, for the amount of his claim, “ with privilege on the property attached.”

A second attachment suit was instituted by A. Beavers, the other plaintiff, against Peter Weber, in which the pleadings and judgment appear to be substantially similar to those in the other case. An execution was issued on the judgment in the former case. From the return of the Sheriff on it, it appears that the property in dispute was adjudicated to the plaintiffs on the 28th of February, 1852, at a coffee-house, at the corner of Rousseau and Philip streets, where the sale was advertised to take place. It does not appear that either of the defendants was ever notified of it; and, as the plaintiffs allege, they have continued to occupy the premises since that sale.

It must be conceded that the proceedings in those suits were exceeding loose and irregular. There is nothing in the record which shows that the claim of the intervenor was ever adjudicated upon, or that it was abandoned. Neither does it appear that the intervenor ever had any knowledge of the judgments rendered against her vendor, recognizing the attaching creditor’s privilege on the property. In the absence of such proof, and in view of all the circumstances disclosed by the record, it is clear that the rights of the intervenor must stand unaffected. So thought the District Judge, for his judgment was chiefly based on the ground that the plaintiffs were bound to resort to a revocatory action.

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

Slidell, C. J.

I have not examined the merits of this cause, being of opinion that the motion to dismiss, made by the appellee in this case, should prevail, the transcript being incomplete. See Guillart v. Marcelline, 7 Annual, p. 442.


author: Yookhies, J.

text:
    Junius Amis et al. v. Bank of Kentucky.
    Upon tlie dissolution of an injunction, which arrests the execution of a judgment, the judgment creditor is only entitled to interest to the date of the dissolution.
    Appeal from the Pourth District Court'of New Orleans, Reynolds, J.

      Thos. S. Fierce, for plaintiff.

      Stochton & Steele, for defendant and appellant.
   Yookhies, J.

The defendant obtained a judgment against Theopkilus Freeman, for the sum of $1236, with five per cent, interest per annum on $1225, from the 30th of' January, 1844, until paid. A writ of fieri facias was issued on this judgment and levied on two negroes, as the property of Freemcm. The plaintiff claimed the ownership of the negroes, and enjoined the sale. The judgment dissolving his injunction condemned him to pay the defendant “twenty per cent, damages, and eight per cent, interest, from the 27th of June, 1848, on the amount of the judgment enjoined, to wit: $1236, and five per cent, from the 30th of January, 1844, on $1225, &c.” On this judgment an execution was issued, directed to the Sheriff of the Pai'ish of Madison, which was also enjoined. On its dissolution, the plaintiff, and his sureties on the bond, were condemned, in solido, to pay the defendant the sum of $193 44, as damages, and eight per cent, interest on $967 44, from the 12th of June, 1850, until paid.

On the 19th of January, 1852, Sill, McLecm & Go. paid $1584 16, as the amount purported to be due on both judgments in the injunction cases, and were, by reason thereof, specially subrogated to all the rights of the defendant.

Afterwards, the plaintiff and subrogees took a rule on the defendant and Roiert Mott, attorney of record, to show cause why the sum of $830, alleged to have been overpaid by them in error, should not be reimbursed.

Prom the judgment rendered in favor of the plaintiff and subrogees, making the rule absolute for the sum of $353 89, the defendant in the rule appealed.

The appellees also complain of an error in the judgment to their prejudice, and ask us in their answer to amend it so as to allow them the sum of $708.

We consider both judgments in the injunction cases as final and conclusive between the parties. The correctness of the adjustment made between them under those judgments, by the Court below, is, therefore, the only matter into which we can inquire. We think the damages and eight per cent, interest were properly allowed on the amount due, on the judgment enjoined, including interest to the 27th June, 1848, to wit: $1505, but that the Court below erred in computing the interest from that day to the 19th of January, 1852, when the payment was made. As the judgment was silent on the subject, the interest should have been computed to the date of the dissolution of the injunction, to wit: the 10th of April, 1849. In Brown v. Congot, 8 R. 17, where a similar question was involved, it was held, in relation to third persons, that the party was only entitled to interest up to the date of the dissolution of the injunction, as at that time he would be at liberty to proceed with his execution.

As to the other injunction, the damages and interest allowed by the judgment are clearly specified, and admit of no doubt.

' Tn relation to the claim set up by the appellant, for costs incurred in the original suit against Freeman, for'the custody of the negroes under seizure during the pendency of the injunction suit, we concur in opinion with the Court below, that it was a matter for special damages, which should have been set up and proved on the trial of the injunction suit.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower Court be amended so as to allow the plaintiffs and appellees the sum of five hundred and eighty-six dollars and seventy-two cents, and that, so amended; it be affirmed, with costs in both Courts.


author: Rost, J. Slidell, 0. J. Bumianan, J.

text:
    Christophe Colomb et al. v. George W. Jones et al.
    F., the tutor of a minor, purchased, at a judicial sale, a slave belonging to the minor, and the widow in community. The widow approved of the purchase. Afterwards F. was remoyed from the tutorship, his account homologated—and R., being appointed in his stead, was authorized by the Court to receive the price of the sale. Held:—-This judgment was, by implication, a judicial approval of the sale, and the Probate Court was competent to sanction it. It may well have been considered by the Probate Judge advantageous for the minors that their new tutor should take the value of the slave in money, rather than bring a suit against F. to rescind the sale.
    It seems, from the phraseology of Article 2139 of the Civil Code, that a minor injure ! by a violation of its provisions, or his tutor under judicial sanction, may waive the penalty which it establishes, and claim indemnity for the loss.
    Appeal from the District Court, Fifth District, Parish of Assumption, Randall, J.

      G. A. Johnson, for plaintiffs.

      Raby, for defendants and appellants.
   Rost, J.

(Slidell, J., dissenting.) This is an hypothecary action.

In 1849 the plaintiffs instituted an action against Raphael Molere, alleging that he had been their tutor, and claiming from him the proceeds of the successions of their father and mother. Molere admitted the tutorship and his indebtedness, and judgment was rendered against him for the amount claimed and interest, with mortgage on all his property, to take effect from the 15th of August, 1840.

Molere was, at that time, the owner of a tract of land which he sold on the 26th,December, 1842, to Edmond Slattery, under whom the defendants hold. The plaintiffs alleging these facts, and the insolvency of Molere, seek to ehforce their legal mortgage on this land.

The defendants deny the existence of the mortgage, and that Raphael Molere ever was the tutor of plaintiffs. They allege that in 1839 Frangois Molere was duly appointed their tutor, and gave bond, and that he has never been deprived of the tutorship, or otherwise superseded.

They further allege that while acting as tutor of the plaintiffs, and administering the succession of their father, as such, he became the purchaser of the entire property of said succession; that this sale was a nullity, which the plaintiffs cannot now ratify to the prejudice of third persons; they, finally, allege that the judgment against Raphael Molere is fraudulent and collusive. There was judgment against them, subjecting the land to the plaintiffs’ mortgage, and they appealed.

The plaintiffs have established, by satisfactory evidence, that Frangois Molere had received the sums for which they have obtained judgment against him. It is true that no judgment can, at this time, he found depriving Frangois Molere of the tutorship, but his declaration is of record in the Court of Probates, ih answer to a petition presented for his removal, that he was insolvent, and had no objection to be removed. The Judge might well have considered this as a resignation, authorizing him to cause another tutor to he appointed, and as Frangois Molere subsequently rendered his account in Court, was discharged as tutor, and the legal mortgage existing on his property raised, it is manifest that if he was not removed, he consented to be superseded, or, in other words, resigned.

It is next contended that Raphael Molere was never appointed tutor; it is shown that he acted as such under the supervision, and, at times, under the order of the Court of Probates. The letters of tutorship are found, although the judgment appointing him is not. We cannot doubt that he was tutor, but whether he was or not is immaterial. After Frangois Molere had been discharged, he, Raphael Molere, received funds belonging to the minors in right of their mother, while he was still the owner of the land in dispute, and whether as tutor, or as intermeddler, a legal mortgage attached upon it in favor of the plaintiffs at least to the amount thus received.'

The property, composing the succession of their father, was all purchased by Frangois Molere, while he was tutor, and it is shown that he paid over to Raphael Molere the price for which he was bound. The plaintiffs sued the latter in affirmance of the sale, and the judgment rendered in their favor was in part for that price.

The sale to Frangois Molere was a nullity, and when the minors became of age, their title to the property thus sold was unimpaired. They chose, however, to ratify the sale by suing for the price in 1849, seven years after the land of the defendants had gone out of the possession of Raphael Molere, and the only remaining question in the case, is, whether this ratification reverts back to the date of the sale to Frangois Molere, or whether it is itself a new title, taking effect from its date only. In the case of Mereier v. Oanonge, the Court held that where a slave, inherited by minors from the succession of their mother, has been illegally sold by their natural tutor, they will not be allowed to ratify the sale, and claim the price from their tutor, to the prejudice of other creditors of the latter. 12th Robinson, 385.

The principle of this decision is applicable to the present case. The nullity resulting fi-om the illegal purchase of the minor’s property, is of the same character as that resulting from the illegal sale of it, and should have no greater legal effects.

The French commentators seem to agree that, although nullities of this description may be ratified, their ratification has no retro-active effect; that it derives all its force from the act of ratification, and produces legal effects only from the date of that act. It is viewed by them as a new title, to be executed independently of the first; and rights acquired by third persons, since the void act, but before the ratification, are in no manner affected by it. 7 Toullier, 557, 563. 30 Duranton, pp. 525 et seq.

Under this view of the law which we adopt, the plaintiffs have no legal mortgage on the land of the defendants, for the proceeds of the succession of their father. The judgment must, therefore, be reversed.

It is, therefore, ordered that the judgment in this case be reversed.

It is, further, ordered that the legal mortgage of the plaintiffs be recognized to the amount of §107 81, with legal interest, from the 30th August, 1840, until paid.

It is further ordered that in default of payment of said sum and interest, the land described in the petition be seized and sold to pay them.' It is further ordered that the costs of the District Court be paid by the defendants, and those of the appeal by the plaintiffs.

A re-hearing having been applied for and granted, the judgment of the Court was pronounced by

Slidell, 0. J.

I was unable to concur when a judgment was rendered by the former Supreme Court, refusing to recognize a tacit mortgage in favor of the plaintiffs on the land of the defendants, for the proceeds of the succession of their father. A re-hearing was granted, and the subject remaining undetermined by our predecessors, is now to be adjudged by this Court.

My views remain unchanged, and I will briefly state my reasons.

The conclusions of Mr. Justice Rost, who was the organ of a majority of the Court, appears to rest upon the following propositions: That the purchase of the slave in 1829 at the probate sale, by F'angois Molere, then tutor of the minors, was a nullity, and when the minors came of age, their title to the property was unimpaired. That, although they chose to ratify the sale in 1849, by sueing Raphael Molere, their second tutor, for the price which he had collected in 1840, this ratification could not retroact to the prejudice of Slattery, who bought from Raphael in 1842 the land which, under mesne conveyances, the defendants now hold.

Under the circumstances of the case, I am not prepared to treat the purchase of the slave, by Frangois, as a nullity at the time when Raphael sold his land to Slattery. The proper consideration of the subject requires a preliminary statement of the material facts.

The plaintiffs are the children of Gelestin Molere and Artemise Breaux. In the fall of 1829 Gelestin died. In November, 1829, upon the petition of the mother, who declared her unwillingness to accept the tutorship, Frangois Molere was appointed tutor of the two minors, Ermina and Joseph, and Raphael Molere was appointed curator of the third minor, then unborn. In December, 1829, under an order of the Court of Probates, the slave and a plough, the only property in which Oelestin’s succession had any interest, were sold by the Probate Judge, and Frangois, the tutor, became the purchaser. The price of the plough was $4, cash; of the slave $1090, payable in three equal instalments in March, 1831,1832,1833. This property is described in the probate proceedings “ as property belonging to the community which existed between Gelestin Molere and his wife Artemise Breaux.” In 1831 Mrs. Molere brought suit against Frangois, to have him removed from the tutorship, by reason of his alleged unfitness for the office, and neglect of the interest of the minors. In her petition, she remarks upon the invalidity of his purchase, but elects to ratify it, and claims from him her share of the price as widow in community. This particular suit does not appear to have been prosecuted. , But it is shown, satisfactorily to my mind, that ■Frangois Molere afterwards consented to be removed ; that Raphael Molere was appointed tutor in 1840; that Frangois rendered an account to the Probate Judge of the nett proceeds of his purchase; that the account was judicially approved, the money received in three years b j Raphael, and Frangois discharged.

At the time of the probate sale, Mrs. Molere, the surviving widow, had a half interest in the property sold, subject, it is true, to the debts of the community, which were quite insignificant. I think there is reason to believe she was acquainted with the fact of the purchase by Frangois, and at all events she expressly approved it, in 1831, and claimed her share of the price from him. Now it is clear, quoad her interest in the slave and his price, that the plaintiffs must claim through the mother, and stand in her stead. And it seems to me it cannot be said that in 1840, after Mrs. Molerés death, when Raphael, the new tutor, settled with Francois for the price of the property, the entire sale of that property was a nullity, and he had no right to receive any part of the money.

I am, moreover, not prepared to say that the sale could be treated in 1842 as a-nullity, even as to the interest of Oelestin, which was inherited from him by his minor children. For, it must be observed, that the judgment in 1840, which homologated the account rendered by Frangois, and authorized Raphael to receive the price of the slave, was, by implication, a judicial approval of the sale, and of the receipt of its proceeds by Raphael, two years before Slattery, under whom the defendants claim, contracted with Raphael. I do not think it was incompetent for the Probate Court to sanction the sale, as it did by the decree in 1840. It may well have been considered by the Probate Judge advantageous for the minors that their new tutor should take the value of the slave in money, rather than bring a suit against Frangois to rescind the sale, and get back the slave. Such an action, be it observed, it would have been impossible to maintain, for more than -the undivided moiety of the slave, since Mrs. Molere had ratified the sale as to her interest, and her heirs could exercise with respect to that interest no greater rights than- their mother.

I think the power of the Probate Court to sanction the receipt of the price of the invalid sale, is aided by a consideration of the peculiar phraseology of the Article 1139 of the Code, which the defendants invoke to defeat the plaintiffs. It is true the Article says: “Every curator of vacant successions, or of absent heirs, is prohibited from purchasing by himself, or by means of a third person, any property, movable or immovable, intrusted to his administration;” but it adds: “ under pain of nullity (sous peine de nullité,) and responsibility for all damages- caused thereby.” May not the injured party, or his tutor for him, under judicial sanction, elect to waive the penalty, and say to the illegal purchaser, the property was taken from the estate by your illegal acts; indemnify the estate for its loss. It was well argued by counsel that no more equitable measure of that indemnity could be adopted as against Frangois, than thevalue he himself had set upon it; nor should third persons complain, for his interest as the purchaser to get it as low as possible, is a reasonable assurance that its value was not collusively enhanced.

Let us suppose, however, for the purpose of argument only, what I am not prepared to concede, that a Court having jurisdiction over the property of the minors could not by such a decree, under such circumstances, conclusively affirm the sale. There is another view of the subject, which may solve the present question.

He who becomes a tutor of minors, becomes answerable for the faithful management of their affairs. This responsibility is guarantied by a tacit mortgage of the tutor’s property in favor of the minors, dating from his appointment. The language of the Code is broad. The tutor shall administer the minor’s estate as a prudent administrator (bon pére de famille) would do, and shall be responsible for all damages resulting from a bad administration. Article 327. The property of the tutor is tacitly mortgaged in favor of the minors from the day of the appointment of the tutor, as security for his administration, and for the responsibility which results from it. Art. 354.

As soon as Raphael was appointed tutor, it was clearly his duty to do one of two things—-either to sue for the rescisión of' the sale, or to collect the price-If the former, his duty has been neglected, and the interests of the minors have' suffered. There is no injustice, under that theory, and under the evidence in the cause, in assuming that the minors have been damnified to the amount of the slave’s value, by the tutor’s neglect. If, on the contrary, it was lawful for him, under the sanction of the decree, to adopt the sale and collect the price, the responsibility of Raphael to account for it to the minors, attached at the date of its receipt, and that responsibility was secured by the tacit mortgage.

I am, therefore, unable to perceive how the action of the plaintiffs is to fail, under which ever view we regard the second tutor’s duty.

However sensibly we may appreciate the hardship of our system of tacit mortgages, its remedy is not a matter within our province. The Code gives a minor that security for the faithful administration of his property, and it is our duty to enforce it. It is not, however, improper to observe that the present case is, in a great degree, divested of the hardships usually incident to that enforcement, by the fact of knowledge of the dangers they were about to incur on the part of the defendants, and those purchasers through whom they derive title.

I think the former judgment of the Supreme Court should be reversed, and the judgment of the District Court affirmed.

All the Judges concurring, it is, therefore, decreed that the judgment heretofore rendered by the Supreme Court in this cause be set aside; and it is further decreed that the judgment of the District Court be affirmed, with costs.

Bumianan, J.

In the case of Mercier v. Canonge, 12 Robinson, 385, it was held that when a slave, inherited by minors, had been illegally sold by their tutor, the minors will not be allowed to ratify the sale to the prejudice of other creditors of the tutor.

This doctrine appears to me sound in law, and consonant to equity. Creditors, and I will add purchasers, without notice, ought to be protected against such ratifications.

But the present case differs from that of Mereier v. Oanonge in this: that the defendants are purchasers, with notice of the claim of plaintiffs against Raphael Molere, for the price of their slave, illegally sold by Franqois Moliere. This notice is patent upon the title of defendants to the land, against which plaintiffs seek to exercise their tacit mortgage.

It is this peculiar feature of this cause, which induces me to concur in the affirmation of the judgment of the District Court.


author: Ogden, J. Vooiuiies, J.,

text:
    Peck & Lyman v. Henry C. Dwight.
    One 1)01111(1 for the claim sued on, in any event, is a competent witness.
    Appeal from the District Court, Parish of St Mary, Nicholls, J.

      Olivier, for plaintiffs and appellants.
    Gibbon, for defendant.
   Ogden, J.

I think this case should be remanded, with directions to the Court below to receive the testimony of William Sharp. The objection made to his testimony, on the ground of interest, in my opinion, cannot be sustained. He swears against his own interest by fixing upon himself the liability for the plaintiff’s claim, so that he will be bound, in any event, to pay the amount in controversy. I do not see how he could be made liable for the costs of the present suit, no matter in which way it is decided. If judgment should be rendered against Dioight, it would be impossible for Dioight to recover the costs of this suit from Sharp, on the ground that it was a debt for which Dioight was the security of Sharp, because Dwight and Sluvrp have, by their declarations, denied such a relation between them to have existed, and the plaintiff has neither alleged or offered to prove any such fact. The action is based upon an alleged advance made by them to Dwight, and the only question is whether the advance was intended to be made to Dwight or Shuep. The fact that at the time of making the advance, a special guarantee was taken by the plaintiffs from Dioight, that the sugar and molasses should be shipped to their house by Bord, and that it was expressly stipulated in the guarantee, that if the sugar and molasses should be lost or damaged on the voyage, Dioight should not be responsible, is a reason for requiring explanation of the whole transaction. The authorities cited by the plaintiffs’ counsel do not apply to tho circumstances of this case, and the case ought to be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be reversed, and the case remanded, with directions to the Judge to receive the testimony of William Sharp ; and it is further ordered that the costs of this appeal-bo paid by the defendant.

Slidell, O. J., and Buciianan, J., concurred with Ogden, J.

Vooiuiies, J.,

dissenting. The plaintiffs’ demand is based on the following circumstances. In January, 1850, Thomas Hord purchased of William Sharp a sugar estate on certain terms and conditions, stipulating, among other things, to deliver, in payment of the price, to the order of his vendor, two-thirds of each crop of sugar and molasses to be made by him on said estate for six consecutive years, the balance of the price, after the expiration of that time, to bo paid in full. On the 25th of January, 1851, Hord shipped one hundred and sixteen hogsheads of sugar, eighty-four tierces of molasses, and four tierces of cistern bottom to the plaintiffs, merchants of New York, to be sold for his account, instructing them to place the net proceeds thereof to the credit of Sharp, except one-third of the molasses and cistern bottom, which ho reserved for himself. The day previous to the shipment, Hord drew the following order in favor of Sharp on Lyman, one of the plaintiffs: u Mr. H. H. Lyman will please pay Wm. Shaop, or order, the proceeds of one hundred and sixteen hogsheads of sugar and two thirds of the proceeds of eighty-four tierces molasses and four tierces of cistern bottom, and oblige, &c.” On the 2oth of January, 1851, the day after, the following endorsement was made on it: “ Pay the proceeds of the within sugar and molasses to H. G. Dwight, or order,” and signed by Shaop. On this assignment the defendant procured from the plaintiffs an advance of $6500. The proceeds of the consignment having fallen short to meet the amount of the advance, the balance resulting in favor of the plaintiffs constitutes the subject matter in dispute.

The receipt of the defendant is in these words: “Received, Franklin, Jan’y 25th, 1851, from Peck & Lyman, H. 3. Lyman’s draft on the said Peck & Lyman, at one day’s sight, for six thousand, two hundred and fifty dollars; also H. 3. Lyman’s chock on Oanal & Bank’g Co., New Orleans, for two hundred and fifty dollars, in all six thousand and five hundred dollars, as an advance on account of a shipment made to them by Thomas Hord, and in accordance with an agreement signed by me and dated this day; the said Hord haring giren an order for aportion of the proceeds of the said shipment to Wm. Sharp and the said order being endorsed to me, the said sum has been received on said order and is to be credited on the same.” The defendant gave a guarantee to the plaintiffs that the sugar, molasses and cistern bottom should be shipped as stipulated by Hord to them ; its obligations extend no farther.

From this state of facts it is clear that the defendant is liable to the plaintiffs for the balance resulting after allowing the proceeds of the consignment as a credit. But it is urged by the defendant that the plaintiffs must fail in this action, as they have failed to establish the correctness of the accounts of sales. From the nature of the transaction between all those parties, it is manifest that the defendant cannot question the correctness of those accounts. Hord alone can be affected by it: the net proceeds, whatever the amount may be, are to be applied in part payment of the price of his purchase. Besides, the deposi. •¿ion of Hord shows that he considered the accounts of sales correct, copies of W'hicli are filed in connection with his testimony.

In relation to the bill of exceptions taken to the opinion of the Judge excluding the deposition of Sharp on the score of interest, it is immaterial to consider it; it cannot vary or contradict the written contract between the parties in the absence of any allegations of error, surprise, or fraud.

I am, therefore, of opinion the plaintiffs ought to have judgment against the defendant.


text:
    Succession of F. Gautier.
    The commission to whidi an administrator is entitled is two and a half per cent, upon the amount of the inventory, deducting bad debts. 0. C. 1062.
    It is not necessary, under the provisions of the Act of 1£52, chap. 305, that a judgment by default should precede a judgment homologating an administrator’s account, rendered by the Cleric of the District Court.
    Appeal from the District Court, Parish of Lafayette.

      Grow & Girard, for administrator.
    Mouton, for opponents and appellants.
   Buchanan, J.

Three creditors of this estate have appealed from a judgment of homologation of a tableau of distribution rendered by the clerk of the District Court of Lafayette.

The appellee (the administrator of the estate) asks us to dismiss the appeal, on the ground that the claims of the appellants, singly, do not equal the constitutional amount requisite to give this Court jurisdiction.

But by the admission of the administrator himself, in his tableau, the claim of one of the appellants, Eleamr Fret, exceeds three hundred dollars. As all the appellants have joined in one appeal, and as no point is raised in argument which is not common to all of them', it is immaterial to examine the amount of the claims of the other 'two appellants, or to decide whether, in a controversy respecting the distribution of funds, the amount of the fund to be distributed, or the amount of single claims, is the standard of the jurisdiction of this Court.

There was no opposition to the administrator’s account filed in the Court below, but the appellants rely for a reversal of the judgment upon errors apparent on the face of the record.

The account is very loosely drawn. It commences with the following item, being the only one to the credit of the estate :

“ Amount of sales which, when collected, will he the active mass, §3800 00.” Under the head of privileged debts is the following item:

“Administrator’s commission, §190 00.”

The appellants have especially directed our attention to this item, which is just 5 per cent, upon what figures in the tableau, as “ the active mass.”

The commission to which an administrator is entitled is two and a half per cent, upon the amount of the inventory of the estate administered, after deducting had debts. O. C. 1062.

It is possible that the commission charged in the account does not exceed the amount allowed by law, but the record docs not show that such is the case.

In other respects this account is very vague and unsatisfactory. Many of the items of “privileged debts” declare the names of the creditors, but not the nature of the claims. Others mention the nature of the claim, but not the name of the creditor. For instance, there is an item, “Attorney’s fees, $100.” Now, the attorneys of record are Grow & Girard, of which firm we understand the administrator to be a member. It appears to us that this item, particularly, should have stated the name of the claimant, in order to enable us to judge of the legality of the claim.

We remark, also, that the account makes no mention of the place of residence of any of the creditors, as required by article 1168 of the Civil Code.

We think that justice requires we should open the judgment of homologation.

There is a point of practice, raised by the appellants, upon which it is proper that we should express an opinion.

It is not necessary, under the provisions of the Act of 1852, chap. 305, that a judgment by default should precede a judgment of homologation of an administrator’s account, rendered by the Clerk of a District Court.

It is, therefore, adjudged and decreed, that the judgment of homologation, appealed from, be reversed, and that this cause be remanded for further proceedings according to law—the costs of appeal to be borne by the succession.


author: Slidell, O. J.

text:
    Edward P. Dwight, Adm’r, &c., v. E. J. & W P. Kemper.
    Suit on a note expressing that it was given for a fee in a certain cause. The Court held that evidence going to show that the note was given for other considerations than those specified on the face of it, was properly rejected.
    Appeal from the District Court, Parish of St. Mary, Voorhies, J.

      Walker, for plaintiff.

      J. 13. Lea, for defendant and appellant.
   Slidell, O. J.

This suit is upon a note signed by the defendants, and also upon an account for professional services in certain enumerated causes.

It is expressed in the note that it is given for the fee of Mr. Dwight in a certain cause of which the title is therein set forth. At the trial of the cause witnesses were offered to show that, in fact, the note was not merely for Mr. Dwight's fee in the cause specified in the note, but also embraced professional services in other suits, being a portion of those charged in the account. We think this testimony was properly rejected. This is quite different from showing by parole the consideration of a note which, on its face, specifies none; and it is proper to observe that there was no allegation, nor offer of proof of fraud or mistake, in the confection of the instrument. '

The other matters, discussed in argument by the appellants, involve questions of fact. Were we acting originally upon the case we might perhaps have allowed a few dollars less than the District Judge awarded, but, upon a review of the whole case, we are not able to say that injustice has been done, or that there is any error authorizing a reversal.

Judgment affirmed, with costs.


author: Slidell, 0. J.

text:
    Samuel R. Bell v. George Elliott.
    Suit on a promissory note. Plea, prescription. Plaintiff had brought suit previously; was called and not appearing, was nonsuited. By the Court: In such a case, at least when unex. lained, the Article 3485, C. 0. applies, and the interruption is considered as not having occurred.
    Appeal from the District Court, Parish of St. Mary, YoorMes, J.

      Brent & Balcer and Maslcell, for plaintiff and appellant.

      J. B. Lea, for defendant.
   Slidell, 0. J.

The note is prescribed unless prescription has been interrupted. The only interruption asserted is the former suit against the defendant upon the same note. But the plaintiif then was called and not appearing, was nonsuited. In such a case, at least when unexplained, the Article 8486, 0. 0., applies, and the interruption is considered as not having occurred. There is an attempt to explain the plaintiff’s failure to appear, but it is loose and defective. It does not appear that the plaintiff had used diligence, or was taken by surprise.

Judgment affirmed, with costs.


text:
    Evariste Decuir v. L. A. Veazey et al.
    The prescription of one year, established by Article 19S9 of the Code, is not applicable to simulated sales.
    The prescription of ten years, established by Article 3442 of the Code, requires good faith in the purchaser.
    In an action to annul a simulated sale, the prayer of the petition was, that the property be w sold in satisfaction of petitioner’s judgment; ” but the judgment decreed the property “ subject to the just claims of his (defendant’s) creditors.” An amendment of the decree was asked for so as to make it c rrespond with the prayer. By the Court: The appellee is entitled to the amendment. The Code of Louisiana contemplates that the revocatory action shall enure to the benefit of the creditor who has been at the expense and risk of prosecuting the action, (C. 0. 1972,) and although we do not regard the present action as coming within the restrictions and limitations applicable to the Actio BaruMana, or revocatoria, yet there is certainly that analogy which the greater bears to the less; and the practice of our predecessors has been in conformity with the prayer of plaintiff’s petition.
    Appeal from the District Court, Parish of St. Martin, YoorMes, J.

      L. Simon, for plaintiff.

      JYieholls, for defendant and appellant.
   Buchanan, J.

The petition sets forth that plaintiff is a creditor of Leiois A. Yeaeey, in the sum of four hundred and sixteen dollars and sixty-six cents, with interest, by judgment; that said L. A. Yeaeey has no property in possession ; but that Theophile Yeaeey claims to he the owner of certain property described in the petition, by virtue of a notarial act, dated the 29th September, 1830 ; which act plaintiff avers to he false, fraudulent and simulated, made for the purpose of defeating the just claims of the creditors of L. A. Yeaeey, who figured in the said act as vendor of the property in question. The plaintiff prays that L. A. Yeaeey and Theophile Yeaey be cited, and for judgment annulling the notarial sale above mentioned, decreeing the property to belong to x. A. Veazey, and to be subject to seizure in execution of plaintiff’s judgment aforesaid.

The petition was filed in 1849. Subsequently one of the defendants, L. A. Veazey, died, and the suit was revived against his widow and heirs. In 1853, issue was joined, and the parties went to trial. Judgment being rendered in favor of plaintiff, the defendant, Theophile Veazey, has appealed.

The evidence establishes that the sale by L. A. Veazey to his brother, the appellant, of three lots, with the houses thereupon, in St. Martinsville, on the 29th September, 1836, was a simulation. The proof of this fact results from the letters of the appellant himself, and from a counter letter signed by him. The latter document is in these words :

“ Je certifie que la vento de la propriété signée par mon frére á mon nom en 1836, est qu’une vente pour guarantir la dite propriété de tous ses créanciers. THEOPHILE VEAZEY.”

The defendant, Theophile Veazey, has pleaded the prescription of one and ten years in bar of this action.

The one year’s prescription relied upon, is that mentioned in the 1989th article of the Civil Code. But it has been frequently held by our predecessors, and the doctrine meets with our entire concurrence, that the prescription of one year, created by that Article, is not applicable to actions to avoid a simulated sale. The language of the leading case upon this point, which is reported, Oammaelc et al. v. Watson et al, 1st Annual, p. 132, is as follows: “ The Code

provides for the avoidance of contracts. It has no reference to simulated or pretended agreements.” And again: “ There is no similarity between the

revocatory action provided for in our Code, and the action to have a simulated sale decreed to be so. As Merlin says: On se pourvoit contre un acte simulé, par une simple demande á ce qu’il soit declaré tel. Rep. de Jurispr. verbo Simulation.

See also 1 Ann. 262; 3 Ann. 627; 4 Ann. 36 ; 5 Ann. 400; 13 La. 129 ; 9 Rob, 267, in note.

The other prescription pleaded, viz: that of ten years, is not applicable to this case. Property is acquired by ten years possession, according to the Civil Code, articles 3442 and following, provided among- other things, that the original acquisition has been in good faith. But this indispensable basis of the prescription of ten years is manifestly wanting in the present instance, as shown by the counter letter signed by the appellant. Besides which, the appellant has failed to prove the ten years actual and continuous possession, which is no less essential. 0. 0. 3445, 3453.

There is a variation between the prayer of the petition and the decree of the District Court, to which our attention has been called by the counsel of the appellee, and in respect to which the appellee’s answer filed requests the amendment of the judgment.

The petition prays that the property described be decreed “subject to be seized and sold in satisfaction of petitioner’s debt,” meaning his judgment against Lewis A. Veazey. The judgment rendered herein decrees the property “subject to the just claims of his (Lewis A. Veasey's) creditors.”

We think the appellee entitled to the amendment. The Code of Louisiana contemplates that the revocatory action shall enure to the benefit of the creditor who has been at the expense and risk of prosecuting the action, (C. C. art. 1972 :) and, although we do not regard the present action as coming within the restrictions and limitations applicable to the actio Pauliana, or revocatoria, yet there is certainly that analogy which the greater bears to the less; and the practice of our predecessors has been in conformity to the prayer of the plaintiff’s petition. See 1st Ann. 132, &c. It is not improper to observe that no other creditor of Yeazey than the plaintiff has intervened in this suit.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended ; that the sale of the property described in plaintiff’s petition from Lewis A. Yeazey to TAeophile Yeazey, by act before Pierre Paul Briant, notary public, on the 29th September, 1836, be avoided and annulled as false and simulated; that the property mentioned in said act be decreed still to belong to the estate of Lewis A. Yeazey, and subject to be seized and sold in satisfaction of the judgment heretofore obtained by plaintiff against said Lewis A. Yeazey; and that the appellant, TAeophile Yeazey, be liable in solido with the other defendants, for the costs of the Court of the first instance, and solely for the costs of this Court.


text:
    Heirs of Reine Trahan v. Michel Trahan et al.
    Action by collateral heirs of the wife to set aside an act emancipating a slave made by the husband and, wife. By the Court: As head and master of the community, the husband has clearly the right, during its existence, to alienate the property belonging to it, and even to dispose of it by gratuitous title, if not made in fraud, or to the prejudice of the wife.
    Arts. 174,177 of the Code authorize a slave to make a contract for his emancipation.
    Appeal from the District Court, Parish of Calcasieu, Overton, J.

      Morogh S Mouton, for plaintiffs and appellants.

      Kirby, for defendants.
   Voorhies, J.

The object of this suit is to set- aside and annul an act of emancipation of the slave Thornton, one of the defendants.

That act was executed by Michel Trahan jointly with his wife Reine Trahan, the consideration stated being the long and faithful services of the slave. The slave emancipated belonged to the community, and was then over thirty years of age. Reine Trahan died without issue, leaving the plaintiffs, her collateral relations, as her legal heirs. Miehel Trahan, surviving spouse, is entitled to the usufruct of the community, and being made a party defendant to this suit, insists on the right of Thornton to his freedom.

The grounds upon which the plaintiffs rely to set aside the act of emancipation, are, for informalities which, it is alleged, preceded its execution, except as to the authority of the wife, which, it is urged, was not legally given to her by her husband. The wife did join in the act with the authority of her husband.

Prom the view which we have taken of this ease, we consider it unnecessary to express any opinion on the other grounds.

As head and master of the community, Michel Trahan had clearly the right during its existence, to alienate the property belonging to it, and even to dispose of it by gratuitous title, if not made in fraud, or to the prejudice of his wife.

Under the provisions of our Code, (Articles 174, 177,) a slave has the right to make a contract for his emancipation, 5 M. R, 494; 3 An. 558.

In this case, conceding the right of Thornton to avail himself of the stipulation of freedom in his favor, of which we think there can be very little doubt, it is clear to our minds the plaintiffs cannot maintain this action. With respect to the status of this person, as concerns the public, or third persons, it is unnecessary for us now to express an opinion.

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


author: Buciianan, J.

text:
    John Bersheim v. William F. Hudson.
    Where there is nothing in the record to show that the matter in dispute exceeds three hundred dot lars, the appeal will be dismissed.
    Appeal from the District Court, parish of St. Mary, VoorMes, J.

      B. Lf. McMellan, for plaintiff.

      Lea, for defendant and appellant.
   Buciianan, J.

The petition sets forth that plaintiff is owner of a lot of ground in the town of Franklin, parish of St. Mary, measuring about forty feet front on Main street, with a depth of one hundred and thirty-three feet: that defendant is erecting on said lot a fence, and, as plaintiff is informed and believes, will proceed to erect other buildings, unless restrained by legal process. Whereupon he prays an injunction against defendant, commanding him not to trespass on the land of petitioner, nor to erect fences or buildings thereon: that after hearing, the injunction be made perpetual, and that defendant be decreed to pay costs.

The answer of defendant denies specially that he has committed any trespass on plaintiff’s land ; alleges title in himself to a lot contiguous to the lot of plaintiff; avers that plaintiff has encroached upon him (defendant) by erecting a building which extends over his proper boundary; and concludes by a prayer that plaintiff be ordered to remove his said fences and buildings, and to pay defendant one hundred and fifty dollars damages for lawyers fees, &c.

The first question to be determined is, whether this be a case within the jurisdiction of this Court;. The title of plaintiff, given in evidence, shows that he paid one thousand and sixty dollars for the lot described in his petition, with all the buildings and improvements thereon. The dispute between himself and his neighbor, the defendant, who derives title from the same source as the plaintiff, seems to be confined to a space of four inches in width by the whole length of the lot, and to the additional space, equal to the foundation of a chimney outside of the lot. Nothing in the i ecord enables us to determine that the matter in dispute exceeds three hundred dollars, in the words of article 62 of the Constitution. It cannot be said that the value of the whole lot of plaintiff is to be the criterion, for the ownership of that lot is not in dispute. Indeed, the defendant neither has disputed, nor could he dispute the title of plaintiff; for his own title refers to that of plaintiff and is derived from the same source.

It should appear clearly from the record that the matter in dispute exceeds three hundred dollars. See Ilennen’s Digest, Appeal 1, No. —, and cases there cited.

It is, therefore, adjudged and decreed, that this appeal be dismissed, with costs.


text:
    Thomas Maskell v. Wm. F. Haifleigh, Sheriff, et als.
    Art. 620, 0. P., which requires the decree of the Supreme Court to be recorded on motion mopeti Cow't, is repealed by the Act of 1852, entitled “ an Act relative to the power of Clerks of District Courts, the parishes of Orléans and Jefferson excepted; ” which confers upon the Clerks of District Courts, power “ to receive, file and record all mandates and decrees rendered by the Supreme Court in causes taken up by appeal from their respective Courts, and to issue all legal process under such mandates and decrees of the Supreme Court.
    The position is inadmissable that the formula “ ne varietur ” on a note, makes the equities between the original parties binding on the endorsees.
    Appeal from the District Court, Parish of St. Mary, Voorhies, J.

      Mas-hell, for plaintiff and appellant.

      T. H. Lewis & Olivier, for defendants.
   Buchanan, J.

In April, 1852, Mrs. Elizabeth Moncure, wife of Paul Pecquet, assisted by her husband, sued out a writ of seizure and sale upon an act importing a confession of judgment, against Thomas Mashell. Mashell appealed from this order of seizure and sale to this Court, and there was judgment affirming that of the Court below, at the September term, 1852. The mandate of the Supreme Court was filed in the Clerk’s office of the District Court, on the 26th October, 1852, and on the same day an alias writ of seizure and sale was issued from the said Court. The present suit was then commenced by Mashell for the purpose of enjoining the execution, and an injunction was accordingly granted.

After hearing, the District Court rendered judgment dissolving the injunction, and condemning the plaintiff and his two securities on the injunction bond, jointly and severally, to pay fifteen per cent, on the amount of the judgment enjoined, as damages. Prom this judgment the plaintiff has appealed.

The grounds assumed in the petition in support of the injunction, are as follows :

1.That the mandate of the Supreme Court has not in open Court been ordered to be filed and carried into effect, as required by law, and all the proceedings have not been duly recorded.

2.That no legal donation.has ever been made of the note sued upon, to the party who sued out the executory process.

3.That the note is marked “ne varietur,” and consequently all equities between the original parties are subject to be offered against the endorsee.

4.That a suit is now (October, 1852,) pending in the same Court, in which the same matters are in contestation, undecided.

5.That the original creditor, payee of the note, promised that the payment of the same should not be enforced during his natural life.

The first of these grounds is based on Article 620 of the Code of Practice, which required the decree of the Supreme Court to be recorded, upon motion to that effect made in open Court, before execution could be issued thereupon.

This article has been repealed by the Act of 1852, No. 305 ; of which the 4th section (Session Acts, page 207,) confers upon the Clerks of District Courts the power “to receive, file and record all mandates and decrees rendered by the Supreme Court in causes taken up by appeal from their respective Courts, and to issue all legal process under such mandates and decrees of the Supreme Court.”

The second ground was considered and overruled by our predecessors, upon the previous appeal; as appears from the opinion in evidence.

The third ground seems to be connected with the fifth. And even supposing that the formula “ne varietur ” is to be considered as having the meaning and effect which the plaintiff desires to attach to it—a doctrine entirely inadmissible—yet there does not appear to have been even an attempt to prove such a promise, as is alleged in the fifth ground.

Upon the fourth ground for injunction, it is sufficient to observe that the suit alluded to is given in evidence, and that we cannot perceive any connection between the matters involved in that suit, and the present one.

We conclude with the Judge of the District Court, that this injunction rests upon no legal foundation, and that this is a proper case for the infliction of heavy damages under the Act of 1831.

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