author: Merrick, O. J.

text:
    Seaman, Beck & Co. v. Robert Babington.
    Unanswered interrogatories will be taken as confessed, although there is no order of court requiring defendant to answer.
    APPEAL from the District Court, Eighth District, Parish of Livingston, Wat-terson, J.

      J. B. & J. B. Jones, for plaintiff's and appellants. Walh&r, for defendant.
   Merrick, O. J.

This is an action brought to recover a sum of money alleged to be due the plaintiffs upon an open account.

To establish their claim, plaintiffs annexed to their petition interrogatories on facts and articles, and prayed that they might be served on the defendant, and that if they should not be answered within the legal delay, that the same be taken as confessed.

Plaintiffs did not pray that the interrogatories should be answered in open court, nor obtain any order from the court requiring the defendant to answer them.

The defendant pleaded the general issue to the. plaintiffs’ demand.

On the trial, no proof was adduced, the parties submitting the case to the court on the face of the papers. The plaintiffs insisted that, inasmuch as the interrogatories were not required to be answered in open court, no order was necessary, and they must be taken as confessed.

The District Judge being oí the opinion that the order of the court was indispensable, rendered a judgment of non-suit. The plaintiffs have appealed, and contest in this court the correctness of the decision.

Were the question an open one, we should be inclined to adopt the conclusion of the District Court, as we believe it is in conformity with the general tenor of the articles of the Code of Practice and the Act of 1843. Moreover, the introduction of exceptions to general principles in practice, tend to embarrass rather than facilitate the administration of justice.

Nevertheless, we look upon the case of Coxe v. Mitchell, 1 L. R., 522, the record of which wc have carefully examined without finding any order, as decisive of the question. See also cases of Magee et al. v. Dunbar & B., 10 L. R., 546, 551; Polo et al. v. Natali et al., 14 L. R., 260; Derbes v. Becuw, 5 R. R., 491.

The judgment of the lower court must therefore be reversed, and judgment rendered in favor of plaintiffs.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the plaintiffs do recover and have judgment in their favor and against the defendant, for the sum of six hundred and fifty-five dollars and seventy-two cents, with five per cent, interest thereon per annum, from the nineteenth day of March, 3855, until paid; and that the defendant pay the costs.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    H. Short v. Trustees of the Methodist Episcopal Church South.
    Action of jactitation — plaintiff alleged himself to be the owner and possessor of a certain lot of ground. Defendants excepted that plaintiff had not the necessary possession to maintain the action. The District Court ordered the exception to be referred to the merits — when defendants, after acquiescing in the order, amended the answer and set up title. Held: The amendment of defendants’ pleadings waived the question of possession, and converted the action into a petitory one, in which the burden of proof was upon the defendants.
    Bond to make title to a lot of ground on which a church was being erected, but in which the dimensions of the lot were not stated, and there being no proof from which it could be inferred what the dimensions were to be. Held : Defective as the foundation of title.
    APPEAL from the District Court, Tenth District, Parish of Carroll, Farrar, J.
    Short, in pro. per. Dubose, for defendants and appellants.
   Buchanan, J.

This is an action of jactitation. The plaintiff alleges himself to be the owner and possessor of a lot of ground in the town of Providence, parish of Carroll, at the north-east corner of Railroad street and Fourth street, measuring fifty feet on the former, and one hundred and fifty feet on the latter.

Defendants appeared and excepted that plaintiff had not the possession requisite to maintain this action ; but, upon an order made by the court, to refer this exception to the merits, they filed an amended answer, setting up title in themselves to the land described in the petition. It is worthy of particular remark, that the defendants acquiesced in this order of court by amending their pleadings, and not insisting upon trying the issue of possession as an exception.

The District Court correctly ruled that this amendment of the pleadings of defendants waived the question of possession, and converted the action into a petitory one, in which the burden of proof was upon the defendants. Millaudon v. McDonogh, 18 L. R., 102.

The title set up by defendants is, 1st, a donation by verbal gift and delivery from Mrs. Luc,inda Chambliss, about the year 1847, and 2d, a bond executed by Coney Hood, the heir, and Wilson, the executor of Mrs. Chambliss, on the 29th April, 1848, by which they bound themselves to make a title to defendants to a lot of ground in the town of Providence, on which a Methodist church was then being erected, and which lot included that claimed by plaintiff.

The bond of Covey Mood and Wilson, which is the sole foundation of defendants’ title, gives no dimensions whatever to the lot on which the Methodist church is erected. Defendants pretend, without any warrant whatever in the proof, that it should be taken to be one hundred and fifty feet square. That such was not the understanding of Mr. Hood,, may be inferred from the fact that lie sold, in January, 1852, fifty feet by one .hundred and fifty, at the corner of Railroad and Fourth streets, being the identical land claimed by plaintiff, to one McFall. The evidence shows that there are lots in Providence of fifty feet, seventy-five, one hundred, and one hundred and fifty feet front: and it appears that the Methodist church, as erected, does not stand on any portion of the land claimed by plaintiff, and to which he has removed a building, which formerly stood upon another lot.

The defendants have entirely failed in proving title to the land in controversy. The judgment of the District Court is therefore affirmed, with costs.


author: Merrick, C. J.

text:
    Henry Schadel v. Alexander St. Martin.
    Mortgages ave so far sfo'ieii juris that they cannot be extended by implication.
    The dissolution of the lease, by the destruction of the premises, does not give the lessee any right to recover back money paid for previous rent.
    When there is a partial execution of the principal obligation, the Judge may modify the penalty, unless there is a contrary agreement.
    Code-2121, 2128, 2231.
    APPEAL from the District Court, Sixth District, Parish of East Baton Rouge, Bobertson, J.

      Seymour, for plaintiff. J. M. & J. R Mam, for defendant and appellant.
   Merrick, C. J.

On the ninth day of March, 1854, the defendant leased to the plaintiff a brewery and dwelling house in the town of Baton Rouge for three years, to commence the 15th day of the same month, at a rent of fifty dollars per month. The lease contained the following mutual covenant viz: “For the full and ample compliance of the above contract, the said Henry Sehadel, engages himself to deposit, as a forfeit in case of evasion or non-compliance, the sum of five hundred dollars in the hands of St. Martin, and the said St. Martin, on his part, for the same purpose, engages to give the said Sehadel mortgage to the said amount of five hundred dollars on the property leased as above. The said St. Martin further obliges himself to pay the said Henry Sehadel the amount of eight per cent, interest on the five hundred dollars deposited by the said Sehadel as a forfeit as aforesaid, the parties then binding themselves mutually in the sum of five hundred dollars each for the faithful performance of this contract.”

The mortgage was accordingly executed by St. Mwtin, and the money deposited by Sehadel. The plaintiff took possession of the property, and paid the rent regularly, until the 15th day of August, when Jules Boneeaze, a son of L. Boneeaze, the defendant’s agent, called on plaintiff for the rent for the month terminating that day. The answer given was, that defendant owed him five hundred dollars, and he would not pay the rent until he was guaranteed its payment.

On the 27th day of August, the brewery burned down, leaving the dwelling house standing. Defendant had an insurance on the building, and the plaintiff on his stock. The insurance company paid to each his respective loss.

On the fifth day of September the plaintiff notified the defendant’s agent that the lease was avoided by the fire, and that he would presently remove from the premises, which he did.

The defendant having returned home on the 26th dav of September, (after plaintiff had removed from the premises) notified the plaintiff that it was his intention to rebuild the brewery, and place the promises in the condition they were at the commencement of the lease, and that he would submit to an equitable deduction on account of the time he would lose.

Plaintiff instituted this action against the defendant on the 28th day of October, 1854, to recover the five hundred dollars deposited, and eight per cent, interest, and the four months’ rent which he had paid.

The defendant rebuilt the brewery on another part of the premises.

The Judge of the lower court gave plaintiff judgment for four hundred and fifty dollars, and eight per cent, interest thereon from the date of the deposit.

The plaintiff moved the court to reconsider the judgment, and the defendant moved for a new trial, both in vain.

The defendant appealed. -The plaintiff has filed an answer praying an amendment of the judgment.

In this court the plaintiff and defendant present the following points, arising from the foregoing state of facts:

1st. The judgment ought to be amended, so as to recognize plaintiff’s mortgage for the reimbursement of the five hundred dollars.

2d. That the judgment ought to be so amended as to give plaintiff the whole amount deposited and the whole amount of rent paid, inasmuch as the forfeit was without the fault of plaintiff.

3d. The defendant contends that, inasmuch as the plaintiff was in default for the non-payment of and the refusal to pay the rent on the fifteenth day of August, he forfeited to the defendant the five hundred dollars deposited, and that the plaintiff, being in default himself, could not put the defendant in mora.

Before considering these objections, we will observe that, although the defendant’s counsel notices that the Judge of the lower court did not allow the defendant rent from the 15th to the 27th of August, he does not complain of the judgment in this respect. Indeed he based his motion for a new trial on the grounds above stated.

I. As it respects the first ground taken, it is sufficient to say that mortgages are so far striati juris that they cannot be extended by implication. The lessor did not promise to give a mortgage for the return of the deposit, and in the mortgage which was given it was expressly declared to be “ To secure the payment to the said Sohadel of the forfeiture of five hundred dollars for any infringement of said lease on the part of said lessor." It is difficult to perceive how this can include the deposit of plaintiff, which stood itself as a penalty.

II. Conceding for the present that plaintiff’s action can be maintained, it by no means follows that he has a right to demand a return of the rent paid prior to the dissolution of the lease by the loss of the thing leased. When he paid the rent the lease was in full force, and he was simply paying a debt. The dissolution of the lease certainly could not give him a right to demand back money which had been paid for an equivalent. 0. C., 2281.

III. We look upon the five hundred dollars deposited with the defendant as a penalty. The Code provides that the creditor cannot exact both the penalty and the principal obligation. C. C., 2121. Whenever there is a partial execution of the principal obligation, it is in the power of the Judge to modify the penalty, unless there is a contrary agreement. C. C., 2128 ; 7 An., 231. The Judge of the lower court seems to have exercised the discretion in this case in a proper manner, by deducting the rent due from the sum deposited. The refusal to pay the rent did not have the effect of rendering the lease indissoluble.

We think the District Judge has done complete justice between these parties.

Judgment affirmed.


text:
    Succession of A. L. Pettis.
    An administrator lias no capacity to appeal in behalf of parties whom he has placed on his account as creditors, and whose claims have been opposed and rejected by the court.
    To consider the acknowledgment by an administrator of a claim against the estate as conclusive of its correctness, notwithstanding an opposition specially made to that item of the account, and without further proof, would be virtually to abrogate Articles 1004,1006 and 1006 of the Code of Practice.
    APPEAL from the District Court, Seventh District, Parish of East Feliciana, Merrick, J.
    Hernán, for plaintiff and appellant. Muse & Hardee and Fuqua, for defendant.
   Buchanan, J.

The administrator of this succession is appellant from a judgment rendered April 20th, 1855, upon an account of administration, which was filed January 13th, 1855. His grounds of complaint in this court are two:

1st. That he has been charged by the judgment with a sum of §2026 78, amount of B. A. Bell's hid at probate sale for the interest of the deceased in the partnership of Pettis & Bell, notwithstanding he offered proof on the trial of the oppositions to this account that he had not received that amount.

2d. That the judgment has rejected a number of items of debts due to sundry persons by the estate, notwithstanding they were acknowledged by the administrator and appellant to be valid claims against the succession.

The second of these grounds might be dismissed with the remark that the administrator has no capacity to appeal on behalf of parties whom he has placed on his account as creditors, and whose.claims have been opposed and rejected by the court. It is no part of the administrator’s business to swell the amount of indebtedness of the estate which he administers beyond the limits fixed by the court of the first instance. If convinced himself of the correctness of a claim, he has done his duty by placing it upon the account. In the subsequent contest between the claimant and creditors or heirs, the administrator is supposed to be disinterested, and cannot, therefore, be aggrieved by its decision. This point has been long ago settled in the case of Ferguson & Hall v. Their Creditors, 19 L. R., 278. Indeed the doctrine contended for by this appellant, that his acknowledgment of a claim against the estate was conclusive, notwithstanding an opposition specially made to that item of his accou t, and without further proof, would virtually abrogate Articles 1004, 1005 and 1006 of the Code of Practice. The cases quoted by appellant from 2 N. S., 896; 8 Rob., 286, and 7 An., 152, only decide that vouchers for moneys paid by the administrator are prima facie proof in his favor.

As to the item of $2026 78 with which the administrator is charged, it appears from the record that he was made liable for this amount as so much money received by him for the account of the succession by a judgment upon a former account of administration, which judgment was signed on the 10th November, 1854, and from which judgment no appeal has been taken. This question is therefore res judicata against the administrator, and the court properly refused to go behind that judgment, and to receive evidence against it.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, and that the appellant, William Gurney, pay the costs of this appeal.


author: Voobhies, J.

text:
    Dr. Whitman Wilcox v. Wm. W. Leake.
    It is for the jury, and not the witness, to determine from all the circumstances disclosed whether the plaintiff occasioned any damage to defendant by his negligence, or want of skill, and if so, to assess the amount of such damage. Hence, the testimony of the witness as to his opinion of the amount of damage suffered is not admissable.
    from the District Court, Seventh District, Parish of East Feliciana, Eatliff, J.

      Powell, for plaintiff. Brewer & Collins, for defendant and appellant.
   Voobhies, J.

The plaintiff brought this suit for the recovery of the sum of $119, for medical1 and surgical services alleged to have been rendered by him to the defendant.

In his answer the defendant admits that he employed the plaintiff as a physician and surgeon, but avers that the plaintiff inflicted upon him serious and unnecessary injuries by his neglect and want of skill in performing the services for which he was called, whereby he has sustained $2,800 damages, which he claims in reconvention.

The cause was submitted to a jury, who gave a verdict in favor of the plaintiff, awarding him the sum of $72, and rejecting the defendant’s demand in re-convention. The latter is appellant from a judgment thereon rendered.

The testimony of Dr. Whicher shows the nature of the wound which was received by the defendant, and the circumstances under which the plaintiff’s services were required; it is in substance as follows.'

He says that the defendant, of who n he was then the attending physician, received in the spring of 1854 a wound in his face; it was a punctured wound, made by a dagger, the point of which entered the corner of his mouth and came out at the angle of his jaw, severing the facial artery and causing thereby great hemorrhage. It was a dangerous wound. Two or three days after it occurred, Dr. Wilcox was sent for, at the request of defendant’s family. In the interval, the hemorrhage, though checked several times, broke out afresh. Drs. Dashiel, Graham, and Ewing had called to see the defendant before Dr. Wilcox was sent for. There was a difference of opinion between the physicians called in as to the manner in which the hemorrhage should be stopped. Dr. Wilcox also resorted to the compress, which checked it for a time, as it had done before. On the second or third visit he determined to attempt to tie the artery.

It is that operation which has given rise to the defendant’s complaint. "We have carefully examined the evidence in relation to it, and we are not prepared to say that the verdict of the jury is so manifestly erroneous as to authorize us to disturb it.

Our attention has been called to a bill of exceptions to the opinion of the Judge a quo in ruling out the following testimony, given by S. S. Lurty on the trial of the ease:

“ From the knowledge which he, witness, has of the manner in which the operation was performed, from the amount of pain which the patient must have suffered in consequence of the bungling manner in which the operation was performed, from the loss of time consequent therefrom, and in consequence of the disfiguration of the face of Mr. Leake from the scar caused by the incision made by Wilcox, and from the fact that Mr. Leake is a young man, not more than twenty-three years of age, and being a single man, ail these circumstances taken into consideration, the witness thinks that Mr. Leake, the defendant, has been damaged at least $1000.”

We do not think the Judge erred. It was for the jury, and not the witness, to determine, from all the circumstane s disclosed by the evidence, whether the plaintiff had occasioned any damage to the defendant by his negligence or want of skill; and if so, to assess the amount of such damage. It is the peculiar province of a jury to make the assessment of damages in such cases, in which much discretion is vested in them, under the rule prescribed in the third paragraph of Article 1928 of the Civil Code. Were it otherwise, the witnesses, and not the jury, would be the judges to determine the matter.

The same reason is applicable, in our opinion, to the other bill of exceptions in relation to the testimony of the Judge a quo, which was to the same effect.

It is, therefore, ordered and decreed, that the judgment of the court below he affirnjed, with costs.


text:
    Matthew P. Provan v. Charles E. Percy, Administrator of Thomas B. Percy, deceased, and Wm. H. Barrow.
    The discharge of the surety, under Article 8080 of the Code, only takes place to the extent to which the acts of the creditor have prejudiced the recourse of the surety for reimbursement of what he may be obliged to pay under his contract of suretyship.
    Article 8082 of the Code applies only to obligations payable at a time specified. Such term cannot be extended without the consent of the surety, and if extended, the entire release of the surety follows.
    ÁPPEAL from the District Court, Seventh District, Parish of West Feliciana, Merrick, J.

      U. B. & E. Phillips, for plaintiff. Brewer & Oollins, for Barrow, appellant.
   Buchanan, J.

The defendant was surety on the bond of the tutor of plaintiff

The balance due by the tutor to his ward was settled by a judgment of court at $27,849 66, with a tacit mortgage on all lands and slaves owned by the tutor since the date of the appointment.

The tutor having died, his estate was administered as an insolvent estate; and upon an account and tableau of distribution, filed by his administrator, the proceeds of the real estate ($18,075 75) were allotted to the plaintiff and another minor, to whom the deceased had been tutor. Both those parties opposed the homologation of the administrator’s account; but compromised, and divided the fund between themselves, the plaintiff abandoning $7000 of the amount to the other claimant. The tutor had sold, some years before his death, a house and lot in Bayou Sara, which was subject to the general mortgage of the plaintiff. The plaintiff is admitted to have given the vendee of said house and lot a release of bis tacit mortgage upon the same, in consideration of two hundred and fifty dollars paid him. It is proved that the present cash value of the said house and lot is two thousand dollars.

Under this state of facts, the District Court gave judgment against the defendant, in favor of plaintiff, upon the tutor’s bond subscribed by the former as security, deducting the total amount of the proceeds of the real estate of the tutor, which was the subject of the compromise, in the same manner as if the plaintiff had received the total amount from the administrator; and also deducting the total cash value of the house and lot sold by the tutor, as if the plaintiff had seized and sold it under his tacit mortgage.

The defendant has appealed, and contends that he has been released in toto from his suretyship, by the act of the plaintiff, which has rendered impossible a subrogation to the tacit mortgage of the plaintiff in his favor.

We think the appellant has nothing to complain of. The judgment has allowed him all that the most complete subrogation to the rights of plaintiff could have entitled him to receive from the administrator and from the vendee of the tutor; and the discharge of the surety, under the provisions of Article 3080 of the Code, only takes place to the extent to which the acts of the creditor have prejudiced the recourse of the surety for reimbursement of what he may be obliged to pay under the contract of suretyship. Such is the construction put upon the Article by our predecessors in the case of Saulet v. Trepagnier, 2 An., 428.

The counsel of appellant quotes the 3032 Article, and contends that, as the discharge of the surety is entire in the case supposed by that Article, the same reason exists for a total discharge in the case at bar.

The Article 3032 refers to obligations payable at a term specified. Such term cannot be extended without the consent of the surety. The consequence of such extention is the entire release of the surety. The reason is plain. The term is part and parcel of the contract of suretyship. The surety has bound himself for a particular time, and no longer. The contract cannot be changed without making a new contract in the place of that made by the surety, who is no party to such new contract, unless he sanctions it by his consent.

Judgment affirmed, with costs.


text:
    Sackett, Grymes & Co. v. L. M. Attaway—John A. Mitchell, Garnishee.
    A judgment rendered on the 22d "December, and not signed until the 12th of January, may be treated as rendered at the term at which it was perfected by the signature of the Judge, and an appeal, by motion, may be made at that term.
    APPEAL from the Sixth District Court of New Orleans, Augustin, J., presiding.

      Durant & Honor, for plaintiffs and appellant Wolfe & Singleton, for garnishee.
   Merrick, O. J.

The motion to dismiss the appeal must be overruled in this case. Although the judgment was rendered on the 22d day of December, 1855, it was not signed until January 12th, 1856. During this period it was in the power of. the District Judge to amend it as to form, or even to set aside the judgment ex officio, and grant a new trial. C. P., 547; 7 R. R., 451. We think the appellant is entitled to treat a judgment so signed as rendered at the term at which the judgment has been perfected by the signature of the Judge, and that the party may appeal by motion at that term.

On the merits, we see no reason to disturb the judgment of the lower court.

Judgment affirmed.


author: Voorhies, J.

text:
    Marsh & Pendleton v. Ambrose J. Foster.
    Appeal from an order of seizure and sale, on the ground that the mortgage notes contained a condition that could not be judicially assumed as having happened. The mortgage notes contained the following clause : “ And in case of an overflow of the river, the payment to be extended one year longer, by paying interest.” By the Court: This clause cannot be considered as containing a suspensive condition. It is clear that the defendant’s obligation did not depend upon a future, or uncertain event; on the contrary, its terms were express. Code, 2015, 2016, 2088. The object of this clause, it is in evidence, was to secure to the defendant, in the event of an overflow, the right to prolong the term of his obligation. In order to exercise that right, the burden was on him to show that the event had happened at the time the order of seizure and sale was sued
    APPEAL from the District Court, Ninth District, parish of ConcoraftBji Gooley, J.

      Stockton & York, for plaintiffs. Stacy & Sparrow, for' defendant and appellant.
   Voorhies, J.

This is an appeal from an order of seizure and sale.

The defendant claims the reversal of the order on the following grounds, assigned by him as errors apparent on the face of the record:

First. — The time when the notes and mortgage upon which said order of seizure and sale was granted, would become due and payable, was uncertain. It depended upon the happening or non-happening of a certain event, independent of the will or power of either of the parties. If it had not happened at the time the order of seizure and sale was sued out, then one of the notes was due; if it had happened, then said note would not mature till the 23d of April, 1855. This was a matter en pais, to be inquired of by the country, and it could not be judicially assumed as true, that said event had not happened. The assuming the fact by the District Judge, and granting the order upon that assumption, was error, and the order illegal.”

The two mortgage notes declared upon, contain respectively the following clause, viz:

“ And in case of an overflow of the river, the payment to be extended one year longer, by paying interest.”

This clause cannot be considered, in our opinion, as implying a suspensive condition. It is clear that the defendant’s obligation did not depend on a future or uncertain event; on the contrary, its terms were express. O. C. 2015,2016,2038. The object of this clause, it is evident, was to secure to the defendant, in the event of an overflow, the right to prolong the term of his obligation. In order to exercise that right, the burden, we think, was on him to show that the event had happened at the time the order of seizure and sale was sued out. If the event had happened when the order issued, it is clear he would have been entitled to relief on a proper showing, in the same manner as where time had been granted to a debtor for the payment of the debt, although not mentioned in the contract. C. P. 739 et seq.

Second. — “ As to the other note, it was error to assume that the event specified in it would not happen, and that the note would fall due the 23d of April, 1855. This could neither be known or foreseen at the time of granting the order, which was palpably erroneous.”

This ground presents the same question as the first. It suffices to add, that the plaintiff had the right to require that the property should be sold for the whole of his debt, in accordance -with the terms of the contract. O. P. 686. In case of an overflow previous to the sale, the property must be sold, if required by the defendant, in relation to the last installment, payable on the 20th of April, 1856.

Third. — “ The record, on its face, show’s the contract to be usurious. The actual amount of indebtedness was the face of the notes on the 20th of April, 1852. They were made to bear eight per cent, interest from the first day of January previous, and the order was granted on that basis, and for the amount, including the interest stipulated to be paid on the amount of the note previous to the date of their execution.’ ’

In the absence of any proof to the contrary, we think it may be fairly assumed that the notes were given as evidence of a debt due by the defendant to the plaintiffs, on the 1st of January, 1852.

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


author: Lea, J.

text:
    George Brooks v. John Cavanaugh.
    A judgment by default, confirmed by one law partner, who was ignorant that the other had given time to defendants counsel to file an answer, will be reversed,
    Xv PPEAL from the Sixth District Court of New Orleans, Gotton, J.

      Boberts & Breaux, for plaintiff. Laihrop and O. A. Johnson, for defendant and appellant.
   Lea, J.

(Merrick, 0. J., absent.) This case comes up on an appeal from the confirmation of a judgment by default, rendered under the following admitted state of facts:

On the 17th of May, the day on which the default was confirmed, the counsel for the defendant called upon W. J. A. Roberts, Rsq., one of the legal firm of Boberts & Breaux, who were acting as counsel for plaintiff, and who were his counsel of record, and applied for a delay of a few days on which to file an answer, stating, at the same time, reason why it would operate no delay in the ultimate disposal of the case. To this request, Mr. Boberts gave his assent. On the same day, and about half an hour after this arrangement had been made, Mr-. Breaux, the partner of Roberts, who it appears had special charge of the case, but who was not aware of the promise made by his partner, caused the judgment by default to be confirmed and made final.

The assent given by Boberts, was clearly within the scope of his powers as an attorney at law, and was binding upon his client, until repudiated by him, with notice of the fact given to the defendant or his counsel.

In the case of Robert et al. v. The Commercial Bank, 13 La., in which there was a consent of counsel not to try the case during the summer months, the plaintiff disavowed the agreement made by his lawyer, went in person to the court-room and had the case set for trial, after due notice to the defendant’s counsel, with whom the case was tried contradictorily.

After the agreement, which it is admitted was' entered into between the counsel in the case at bar, it appears to us that a sufficient showing ivas made in support of the application for a new trial, and that the case should be reinstated as it stood at the tim.e the agreement was entered into between the counsel in the case.

In support of this view of the case presented, we refer to the decision lately rendered in the case of Lacoste v. Robert.

It is ordered, that the judgment appealed from be reversed, and that the case be remanded for further proceedings to be had therein, in accordance with the views expressed in the foregoing opinion. It is further ordered, that the plaintiff and appellee pay the costs of this appeal.


text:
    Pearson & Hume v. John F. Harper, Executor, &c.
    An offer by a debtor to give the creditor in payment or discharge of creditor’s claims, a tract of land, if the creditor would give one hundred dollars to boot, will not interrupt prescription.
    APPEAL from the District Court, Tenth District, parish of Tensas, Farrar, J.

      Farrar, for plaintiffs. Stacy and Snyder, for defendant and appellant.
   Buchanan, J.

This is a suit instituted upon the following obligations of defendant’s testator, Stephen M. Ford: Three notes payable to order, of which one was due the 1st of January, 1843, and two, the 1st of January, 1845; also, an account for merchandise sold, with a due bill at the bottom, (not negotiable,) dated 24th of April, 1843.

This suit was instituted in September, 1855. Defendant pleads prescription; and plaintiffs have offered as evidence of an interruption, a letter of Ford to one MoAlpin, dated 14th March, 1850, and the testimony of a witness, Johnston, of conversations with Ford, in the year 1853. The letter was properly admitted in evidence. MoAlpin appears from the letter to have been an agent of plaintiffs. The letter and the testimony contain substantially the same offer on the part of Ford, to give plaintiffs in payment or discharge of their claims, a tract of land, provided they would give one hundred dollars to boot. This offer was declined ; and upon the principle of the case of Lackey v. Macmurdo, 9 An., there was no interruption of the prescription.

Judgment reversed, and judgment for defendant, with costs in both courts.


author: Sfofford, J.

text:
    J. M. Trescott v. William Lewis et al.
    Appeal frófli a judgment overruling a motion to quash an execution, on the ground that the execution issued on the judgment, instead of the twelve months’ bond given by defendant at a sale of his property, bought by him under a previous execution on the same judgment. BytheGouH: Wherein does it concern defendant whether the present ft. fa. issued upon the judgment or the bond ? He is the principal debtor in both, and he does not pretend by his pleadiDgs that he has ever paid the debt, or that it has been extinguished in any mode known to the law, or that he has any possible defence to it,
    A twelvemonths’ bond taken under execution upon a judgment does not operate a satisfaction or novation of the judgment.
    APPEAL from the District Court, Seventh District, Parish of East Feliciana, Duffel, J., presiding.

      Fuqua, for plaintiff. Muse & Hardee, for defendants and appellants.-
   Sfofford, J.

The defendant, Lewis, appealed from a judgment overruling his motion to quash the execution issued in this case.

His ground of complaint is, that the execution issued upon the original judgment, and not upon a twelvemonths’ bond, which he had given at a sale of his property under a previous execution upon the same judgment, but which is long past due.

Wherein does it concern him whether the presentyi.jfe. issued upon the judg-merit or the bond 1 He is the principal debtor in both, and he does not pretend by his pleadings that he has ever paid the debt, or that it has been extinguislied in any mode known to the law, or that he has any possible defence against it.

He concedes — what is perfectly settled — that a twelvemonths’ bond, taken under execution upon a judgment, does not operate a satisfaction or a novation of the judgment.

If he has a technical defence to the bond which is not a defence to the judgment, it is a very good reason why his creditor should take out execution upon the latter; if he has no defence to the bond, it is frivolous for him to complain that the fi. fa. should have issued upon it rather than upon the judgment, which has never been satisfied, and against which ¡he pretends to no equitable defence.

J udgment affirmed.


text:
    David Bone v. Edward Sparrow, Curator.
    By the laws of Pennsylvania and Maryland, if the husband has not, during his life, reduced to possession the choses in action of his wife, they will pass to her representatives.

      By the Gcni/rt: In a case similar to this we have held that the laws of Louisiana must control the distribution of the residuary interest of a succession in this State — the right of action for the recovery of the same being immovable from the object to which it applies.
    Code, 463.
    APPEAL from the District Court, Ninth District, Parish of Concordia, Copley, J.

      Shaw, for plaintiff. Wallon, for defendant and appellant.
   Lea, J.

In 1837 John Ducker, then a resident of the State of Mississippi, died, leaving a large estate in the parish of Concordia, consisting of landed property, slaves, plantation stock, farming implements, &c. — the whole property being either immovable in its nature or by destination.

Ducker, who was a widower, left one child, a daughter, who on the 12th March, 1840, married Henry V. Beckley, in the State of Pennsylvania, where she and her husband continued to reside until the year 1844, when they both removed to the city of Baltimore,-where, in the month of August of the same-year, Mrs. Beckley died. Of the issue of their marriage there survives one child, a daughter, of whom the father became the guardian, by the appointment of the Orphans’ Court in Baltimore county — from which guardianship he has, however, for some cause, not stated, been removed, by proceedings had in the Orphans’ Court, at the instance of one of his sureties.

Upon the death of Ducker in 1837, his succession was opened by the defendant, who was duly appointed curator of the succession and tutor of the minor child of Ducker, and who proceeded to administer upon the same. The whole property appears to have been sold in the years 1838 and 1839, and the succession yet remains unliquidated in the hands of the curator.

In December, 1852, Beckley made a transfer to the plaintiff in this suit “ of all his right, interest, claim, demand and title in and to the personal or movable estate, rights, credits and choses in action of his said wife, of what kind soever, and wherever the same might be situated, in the States of Maryland, Mississippi,

Louisiana, or elsewhere.” In virtue of this transfer, as above stated, the plaintiff has claimed and obtained a judgment recognizing him as the owner of the residuary portion of the succession of said John Duclcer, deceased, after the same shall have been fully administered. The written opinions of learned counsel have been introduced for the purpose of showing that by the laws of Pennsylvania, where the marriage was contracted, and by those of Maryland, which was the matrimonial domicil at the time of Mrs. Beckley1 s death, marriage operates as a transfer of the whole personal or movable estate of the wife to the husband; and that in Maryland, upon the death of the wife, even the dioses in action vest immediately in her husband, who may recover, give or assign the same, without talcing out letters of administration.

But the same counsel also certify that in the two States above referred to the property of the wife, of which the husband during his life does not become possessed, or in eases of debts due to the wife for which he does not recover judgment, the representatives of the wife will take, and not those of the husband. In other words, if this be the law of Maryland — and under the evidence we must assume it to be such, whatever the law may be elsewhere — if the husband has not, during his life, reduced to possession the ehoses in action of his wife, they will pass to her representatives.

Now, it appears that Beckley died in August, 1838. This suit was instituted in November, 1854. Beckley could transfer to his assignees, under tb.e Jaws of Maryland, as established by the evidence, no greater right than he himself possessed. His inchoate right in the succession of Duclcer, tested by the laws of Maryland — to wit, the right to reduce the same to his possession during his life, ceased upon the event of his death, and became revived in favor of the representatives of the wife.

There was no reduction into possession of the property now sued for during the lifetime of either Ihe wife or her husband. The faet that the assignee of the husband is now suing for it wfe consider conclusive on this point. Neither the husband nor his assignee ever exercised any dominion over the fund now claimed, during the marriage nor since. Some stress is laid upon the fact that in 1844 Beckley called on the curator for the purpose-of collecting any moneys coming to his wife from the estate of her father, and to take possession and charge of any property or rights she had here. It is shown that although the curator paid him some money, he did not surrender the estate to his possession or control; on the contrary, the plaintiff distinctly recognizes the fact that Ihe estate is now in process of administration, and has prayed for and obtained a judgment ordering that he be recognized as owner of the residuary portion of the succession of the late John Ducker, “now in process of administration.” We have considered this question with reference to the laws of Pennsylvania and Maryland on this subject, as explained by the testimony of eminent counsel, introduced without objection; but in a case similar, in many respects, to the one now under consideration, we have held that the laws of Louisiana must control the distribution of the residuary interest of a succession under administration in this State — the right of action for the recovery of the same being immovable from the object to which it applies. See Civil Code, 463; also case of Marcenaro v. Mordella, 10 Ann., 772.

It is ordered that the judgment appealed from he reversed, and that there he judgment for the defendant, with costs in both courts.


text:
    The State on the Relation of M. A. Foute, praying for Writ of Prohibition, v. The Judge of the First District Court of New Orleans and Benjamin S. Tappan.
    All cases are excluded from the jurisdiction of the First District Court of New Orleans, which do not come within the definition of criminal cases, as found in the sixth section of the Acts of 1858 and 1855 — “prosecutions for crimes, misdemeanors and offences committed within the limits of the First Judicial District.”
    The 42d section of the Act of 1855 does not give the Fivst District Court of New Orleans jurisdiction to try a contested election of District Attorned of the parish of Orleans.
    If the 42d section of the Act of 1855 applies to the parish of Orleans, the section would be satisfied, without conflicting with previous statutes, by filing the petition contesting the election of District Attorney for the parish of Orleans in any of the five district courts of general jurisdiction in the parish of Orleans.
    The First District Court, being a court of limited powers, any extension of its jurisdiction must be strictly construed, and should not be stretched by implication to cases not named.
    V/ N application for a Writ of Prohibition.

      R. Hunt, for petitioner.
   Buchanan, J.

(Merrick, C. J., absent.) The defendant, Tappan, filed a petition in the First District Court of New Orleans, contesting the election of the relator to the office of District Attorney for the parish of Orleans.

The relator excepted to the jurisdiction of the District Court, and the court having overruled the exception, the relator has applied to this court for a writ of prohibition.

To this application the Judge of the First District Court of New Orleans has filed an answer, in Which he takes the grounds—

1. That the contest of an election is not “ a civil ease,” and therefore that he is not prevented by the organic law of his court from entertaining jurisdiction.

2. That jurisdiction of this contested election case has been given to his court by an Act “ Relative to Elections,” approved 15th March, 1855.

8. That, even supposing the jurisdiction has not been expressly conferred by law, yet he is justified in assuming jurisdiction, in order to prevent a failure of justice.

We will examine these points in the order in which they are here stated. And first, of the jurisdiction of the First District Court of New Orleans, as defined by the law of its organization.

The First District Court of New Orleans is one of the six district courts created by an Act of the Legislature, entitled An Act to organize District Courts for the Parish and City of New Orleans,” approved April 28th, 1858. Session Acts, p. 190.

The sixth section of that Act reads: “The First District Court of New Orleans shall have original and exclusive cognizance of, and shall hear and determine, according to law, all prosecutions upon all crimes, misdemeanors and of-fences whatever, which have been, or which shall be committed within the limits of the First Judicial District; except only such minor offences as shall by law be referred to the jurisdiction of the Recorders of the city, or other police tribunal that may be hereafter organized by law.”

And the 14th section: “All of the said district courts, organized under this Act, shall have and exercise concurrent jurisdiction of all civil cases whatever, which are not hereby specially referred to the particular jurisdiction of special courts, except the First District Court — the jurisdiction of which shall be confined exclusively to criminal cases.”

In the general revision of the Statutes which took place in 1855, it was deemed necessary to reenact the Statute just referred to-, which-was done by an Act entitled “An Act relative to District Courts for the Parish and City of New Orleans,” approved March 14th, 1855, in which Act the fRh. and 14th- sections of the Act of 1853, quoted above, are found, repeated verbatim, in its 6th and 11th sections.

The provisions of these laws are free from: all ambiguity: All eases are in terms excluded from the cognizance of the-First District Court of New Orleans which do not come within the definition of criminal eases, as found in the 6th section of those two Acts — “ Prosecutions for crimes, misdemeanors and offences committed within the limits of the First Judicial District.” It is unnecessary, therefore, to follow the respondent into an investigation how far the contest of an election is to be viewed as a civil action. It is sufficient, upon this branch of respondent’s answer, to say that such- a proceeding is certainly not a “'criminal case.”

This brings us to the inquiry, whether the jurisdiction of the First District Court of New Orleans has been extended to such, a case as this by the Act of 1855. '

On this point the respondent relies .upon sections 41 and 42- of the Statute. Session Acts of 1855, p. 415.

41st directs petitions, contesting, elections of Sheriff, Coroner or -Qferk. of the parish of Orleans, to be presented to- the First District Court of New Orleans; and section 42 provides that “any candidate for either of the of Clerk of the District Court, Parish Recorder, Sheriff, Coroner, Justice of th.e Peace, and any other parish officer that may be elected by the people iSteriding to contest an election, shall, within ten days after the election, file, in the district court for the parish in which the election may have been held, a petition,” &c.

There are two features in this section which, seem-to-indicate that it was intended for the country parishes, and not for New OrleansFirst, it speaks of the election of Parish Recorder — an elective officer existing in every parish of the State, except New Orleans, in which parish, the duties of that office are divided between two officers, the Recorder of Mortgages and Register of Conveyances, who are neither of them elected by the people y. second, the section speaks of the district court for the parish — a form of expression which; seems tc suit only those parishes where there is hut one district court.

It has also been made a matter of great debate whether the District Attorney he & parish officer, although the parish of Orleans be co-extensive with the First Judicial District.

But we regard these points as immaterial: for, granting that the 42d section applies to the parish of Orleans, and that the District Attorney in this district is a parish officer, yet the section does not give the First District Court of New Orleans — which is a court of a limited and exclusive jurisdiction — the right of entertaining the petitions to which it refers; and, as there are in that parish no less than five other district courts, of general jurisdiction, the section would be satisfied, without conflicting with the previons statutes, by filing the petition contesting this election, in any of those courts. The respondent infers, from the fact that jurisdiction was expressly conferred upon his court, by the 41st section, to try contested elections of Sheriff, Coroner or Clerk; and from the other fact, that those officers are mentioned among others in the 42d section, that, therefore, the Legislature must be taken to have intended that contests of elections of all the offices mentioned in section 42, other than those also mentioned in section 41, should be tried (if in the parish of Orleans) in the First District Court of. New Orleans. But the contrary would seem to be the logical inference, from that court being named in the 41st and not named in the 42d section. Inclusio uniusest exclusio allerius. The court being, in its organization, a court of limited powers, any extension of its jurisdiction must be strictly construed, and should not be stretched by implication to cases not named.

We apprehend no danger of a denial of justice, from the incapacity of the First District Court of New Ovleans to entertain a petition contesting an election of District Attorney in this parish.

It is therefore adjudged and decreed that the writ of prohibition herein issued be made perpetual.

        KaChmmi v. Watkins was a case similar to this, and deoidecl upon the same reasoning, in April, 1856.


author: Lea,- J.

text:
    Farmers’ Bank of Kentucky v. William Stevens et al.
    The Act of 1827 has not disturbed the well-settled rules of commercial law on the subject of noj of protest. Its object was to provide a new and convenient mode of proof.
    Nor is the form of notice material where the date, amount and names of the drawer and mentioned.
    It is sufficient if the party to whom notice is sent is enabled to ascertain therefrom the natijj extent of the obligation which has become the subject of protest.
    As holders and absolute owners of a negotiable bill, the plaintiffs had a right, without qualilcation, to enforce payment frbm anyof the parties to the instrutoent. Ij IB It A.RY»
    APPEAL from the District Court, Sixth District, Parish of East E§ Rouge, Robertson, J.

      Lacy, for plaintiffs and appellants. Morgan and D-unn,.for defendants.
   Lea,- J.

This is a- suit, by the holder of a protested bill of exchange, against the drawer and acceptor, who, in addition to the general denial, specially plead a failure of the consideration of the bill — it having been given as the price of five slaves,-sold by the payee to the acceptor, for whose accommodation the bilk was drawn — three of which slaves were, as-defendants allege, affected with red-hibitory maladies at the time of the sale.

The defendant Hickey, moreover, denies the corporate existence of the plain», tiffs, and- avers his discharge from all liability upon the bill, on account of a want of proper presentment for payment,, and of a failure to give due notice of protest, as required by law.

The evidence shows that the Farmers’ Bank of Kentucky is a duly incorporated banking institution of that State; that the bank discounted the hill sued upon in due course of business, before maturity, without notice of the alleged equities between the other parties to the hill; that at maturity it was duly presented at the place designated in the body of the bill, and protested for nonpayment-due notice of which was given to the drawer Hickey, by directing the-notice to him on the day of the protest, under cover to the cashier of the Farmers’ Bank, the last endorser on the bill, who in his turn, on the same day on which he received notice of protest, mailed the notice intended for Hickey “ to Baton Rouge, La.,” the place where he receives his letters and papers. This mode of proceeding Was strictly in accordance with commercial usage. “ The Act of 1827 has not disturbed the well-settled rules of commercial law on this subject. Its object was to provide a new and convenient mode of proof.” See Carmena v. Bank of Louisiana, 1st Ann., 371.

Nor is the form of the notice material where the date, amount and names of the drawer and payee are mentioned. “ It is sufficient if the party to whom no. tice is sent is enabled to ascertain therefrom the nature and extent of the obligation which has become the subject of the protest.” See Mainer v. Spurlock, 9th Rob., 161.

Assuming that there was a good defence upon' the bill as against Graves, it is evident that as the transferee of negotiable paper, received in the usual course of business, the rights of the bank cannot be affected thereby; but there is no evidence in the record upon Which, as between the parties to the sale of the slaves referred to in the answer of the defendants, we would feel justified, even if 4te pleadings permitted it, in entering up a judgment rescinding the sale, or decreeing a diminution of the price of said slaves.

As holders and absolute owners of the' bill, the officers of the bank had a right, without qualification, to enforce payment from any of the parties to the instrument; and the court cannot control them in making a selection. We think there should be judgment for' the plaintiffs.

It is ordered that the judgment appealed from be reversed, and that the plaintiffs, the President, Directors and Company of the Farmers’ Bank of Kentucky, do liaVe and recover of Philip Hickey, and of the succession of William Stevens, in solido, (the latter herein represented by Mrs. Elvira Hackell, widow of said Stevens, and natural tutrix of her minor children, Philip and Elvira Ann Stevens,) the sum of $4968, with interest thereon at the rate of five per centum per an-* num, from the 7th day of January, 1864, till paid, with costs of protest and costs of suit, together with the costs of this appeal. Said judgment, so far as it affects the succession of said WilUam Stevens, to be paid in due course of administration, according to law.


author: Voobhibs, J.

text:
    Caroline E. Wilcox v. Stephen Henderson.
    Suit to recover amount of certain notes obtained by defendant from plaintiff and paid by her, as alleged, for defendant’s benefit. Plea, prescription of five and ten years. To meet this, the plaintiff urged that the Supreme Court had not decided until 3854, that she was not responsible for the debts of her former husband, and that, previous to that decision, she was not bound to bring this action. By the Court: The action of the court in that case did net have the effect of suspending the course of prescription against her.
    APPEAL from the District Court, Sixth District, Parish of East Baton. Rouge, Bobertson, J.

      Lacey, for plaintiff and appellant. J. M. & J. E. Elam, for defendant.
   Voobhibs, J.

This is an action brought by the plaintiff for the repetition of the sum of $3,000, alleged to have been advanced by her at various times to take up certain notes which the defendant had obtained from her for his own benefit and accomodation, and on account of which she had derived no benefit whatever, said notes having been given by her in error and at a time and under circumstances which relieved her from all liability.

The defendant pleaded as a bar to the action, the prescription of five and ten years ; the one as to his liability as a party to the notes, and the other for the reimbursement of money paid on his account.

The plaintiff is appellant from a judgment sustaining the defendant’s peremptory exception.

The facts on which her demand is founded may be succinctly stated as follows: In the month of March, 1842, as widow of the late H. A. L. Hussenclen, she renewed a note of $1000, dated the 8th of April, 1840, and payable on the 1st of April, 1842, of which her husband was the maker and P. A. Walker the endorser, by giving in lieu thereof her own note for $800, and $265 cash. The Bank of Louisiana recovered a judgment against her for the amount of her note given in renewal. It is alleged that the note of $1000 was discounted by the Bank of Louisiana, and the proceeds placed to the credit of the defendant, on or about the 7th of July, 1841. On or about the 15th day of May, 1839, the defendant placed in the Bank of Louisiana H. A. L. Mumnden's note for $600, payable to the order of the defendant, and discounted for the benefit of the maker, which note she renewed on the 18th of May, 1840, by giving her own note for the sum of $480, endorsed by J. Perkins.

The present suit was instituted on the 29th of July, 1853, more than ten years after the alleged cause of action had arisen. There is nothing showing an interruption of prescription. The maxim of “ Gontra non valentón agere, non ourrit prescription has been invoked by the appellant. It is urged by her that the Supreme Court of this State had not decided until June, 1854, that she was not responsible for the debts of her former husband, H. A. L. Mitssen-den, and that she was not bound, previous to that decision, to bring her action for the recovery of moneys paid by her in error. See 7 R. R., 341. The action in that case did not, in our opinion, have the effect of suspending the course of prescription against her.

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


author: Spojtok», J.

text:
    Hyde & Goodrich v. The City of New Orleans.
    Courts will not lend their aid to foster, circuitous, idle and wasteful litigation. The only real complaint plaintiffs have, is that they anticipated the payment of what afterwards became a debt. As the debt was due when they brought their suit, there was no equitable ground for repetition,iu the fact that they paid it under a mistaken belief that they owed it before they really did.
    APPEAL from the Second District Court of New Orleans, Zea, J.

      Robert, for plaintiffs and appellants. T. R. Wolfe, for defendant.
   Spojtok», J.

The plaintiffs brought this suit in 1863, for the repetition of taxes upon capital alleged to have been paid by them in 1848 and 1849, for those years, in error of law, the Municipality No. 1 then having no power to tax capital whilst they supposed it had.

But, on the 7th February, 1860, the Act “ to authorize the several municipalities of the city of New Orleans to levy taxes upon capital,” was approved, (Sess. Acts, p. 6,) by the second section of which, each of said municipalities was empowered to levy a tax on capital on the assessment roll for the years 1848 and 1849, not to exceed the amounts already imposed by existing ordinances of the said municipalities.

The Municipality No. 1 availed itself of this legislative grant of power, and in the case of Wheeler & Blake v. Municipality No. 1, 10 An., we affirmed the constitutionality of the law, and the binding force of the ordinance passed in pursuance thereof.

So that if the plaintiffs paid their taxes on capital before the Act of 7th February, 1860, and the ordinances pursuant thereto were passed, of which there is no proof in the record, still, when they brought this suit, they were legally liable to pay the defendants taxes to precisely the same amount and for the same years, under the last named ordinances.

Courts will not lend their aid to foster circuitous, idle and wasteful litigation. The only real complaint the plaintiffs have, is that they anticipated the payment of what afterwards became a debt. As the debt was due when they brought their suit, there was no equitable ground for repetition, in the fact that they paid it under a mistaken belief that they owed it before they really did.

Judgment affirmed.


author: Spoppord, J.

text:
    The State v. Slave Bob.
    Objections to the admissibility of the prisoner’s confession, and to the instructions of the court, must be taken by bill of exception, and not by assignment of error. And where the Justices who presided at the trial of slaves, were of opinion that they had no power to sign bills of exception, evidence of this should appear of record.
    Assignment of error, u that the tribunal who convicted said slave were informally and illegally constituted.” By the Cowt't: This objection is entirely too vague, and has not been made more explicit by any specification, even in argument, in this court.
    APPEAL from the Sixth Magistrate’s Court of Madison.

      Morse, Attorney General. Hynes, for appellant.
   Spoppord, J.

The slave Boh having been sentenced to death by a Jury em-pannelled under the law for the trial of slaves, has appealed.

We are unable to pass upon his case with nothing more than the present re cord before us. Our appellate jurisdiction in criminal cases is limited to questions of law. These questions must be presented by bills of exception or assignments of errors.

There is no bill of exceptions in the record. The counsel of appellant states in his printed brief, that the Justices presiding over the tribunal were of the erroneous opinion that they had no power to sign bills of exceptions. But there is no evidence of this in the record, nor any evidence that the objection to the admissibility of the prisoner’s confession, was raised in time. Although the evidence itself was taken down by some one in writing, and comes up with the record, it does not belong to our province to examine it.

There has been no assignment of errors filed in this court. There is one in the record, which appears to have been filed in the inferior tribunal, after the appeal was granted.

The first point in this assignment refers to the admissibility of the prisoner’s confession, which, as we have already stated, should have been presented by a bill of exceptions tendered at the time the evidence was admitted, or by something in the record equivalent to a bill of exceptions.

The second is as to an instruction, of the presiding magistrates. This too should have been presented by a bill of exceptions seasonably taken, or it should appear of record in some mode. One of the Justices indeed certifies that they told the jury that if they found the prisoner guilty, (of administering poison,J the law affixed the penalty, and they could not commute the punishment; but it does not appear from the certificate that the prisoner’s counsel objected or asked any different charge.

The third point assigned for error in the lower court, was “ that the tribunal who convicted said slave were informally and illegally summoned and constituted.”. This objection is entirely too vague, and has not been made more explicit by «any specification, even in argument, in this court.

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


author: Spojtord, J.

text:
    City of New Orleans v. François Lacroix.
    In a suit for taxes, where the defendant, after setting up certain dilatory exceptions, added that should the exceptions be overruled, “ the respondent pleads a general denial, and especially the ownership of the property taxed,” defendant will not be permitted, under such an answer, to show that he had alienated the property previous to the assessment.
    Defendant should have alleged specially what were the errors he complained of in the assessment roll, and that he had, without avail, resorted to the means afforded him bylaw to correct such errors, or at least allege a sufficient reason for having failed to do so.
    jfi. PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Hiestcmd & Levy, for plaintiff. Collins, for defendant and appellant.
   Spojtord, J.

The case comes up on a bill of exceptions to the ruling of the court below. The Judge refused to receive evidence that the property described in the demand and assessment rolls, had been alienated by the defendant previous to the assessment.

Under the pleadings, the court did not err. The answer, after setting up various dilatory exceptions, merely stated that, should the exceptions be overruled, “ the respondent pleads a general denial, and especially the ownership of the property taxed.”

Such a vague and loose averment as this, did not authorize the admission of the evidence proposed. The defendant should have alleged specifically what were the errors he complained of in the assessment roll, and that he had, without avail, resorted to the means afforded him by law to correct such errors, or at least, allege a sufficient reason for having failed to do so.

Judgment affirmed.


text:
    Esther Klein v. Dewees & Ingalls.
    Mortgage certificate of reinscription, as follows: “ And the general one against II. M. W., in favor of Thomas 2&. Ingalls., resulting from a judgment rendered by same court as above, on the 9th December, 1SS9, for six thousand one hundred and six one dollars and sixty-nine cents, interest and costs, being the reinscription made in this office, on the 6th of August, 1849, of the same judgment recorded on the 13th December, 1839, in this office ; which origi/nal judgment was, on the 1 Uh November, 1843, cancelled and amiulled hut so far only as it bears on and affect the three squares of gromid above described, and no fw'ther.” By the Court: It is not pretended but the original mortgage was properly cancelled by the Sheriff. What then was the effect of the reinscription ? We think it was merely to continue in force the judicial mortgage, just as it existed previously. The mortgage had no greater force the day after its reinscription, than it had the day before. The veinscription informed Ingalls, as it did all the world besides, that the judicial mortgage as to these lots had been cancelled. We do not think Ingalls can now be permitted to gainsay this record, which he has caused to be made in the office of Recorder of Mortgages, where alone his judgment could acquire the force of a mortgage, even as against W.
    XI PPEAL from the Third District Court of New Orleans, Kennedy, J.

      Roselius, for plaintiff. Strawbridge, for defendants.
   Merrick, C. J.

Thomas P. Ingalls having seized, under an execution issued against B. Ml Wellman, three lots of ground in Greenville, in the parish of Jefferson, the plaintiff instituted the present action of injunction to restrain the sale of the property seized.

The material facts out of which this controversy arises, are these: Ingalls recovered judgment against B. M. Wellman, for $6,161 69, on the 10th day of December, A. D. 1839, which was recorded on the 13th of the same month in the mortgage office of the parish of Jefferson. B. M. Wellman appears to have been insolvent, and a fi. fa. issued on this judgment in 1841, was returned nulla bona.

In 1836, James OgeVoie sold to Catharine J. Wellman, the daughter of R. M. Wellman, the three squares of ground in controversy, reserving the vendor’s privilege and a mortgage upon them to secure the price. Catharine J. Wellman having died, and B. M. Wellman having- become her sole heir, Ogel-oie instituted suit against B. M. Wellman, to recover the notes due as the remainder of the price, and on the 11th da}r of April, 1842, obtained judgment for six hundred and fifty dollars and interest, and his special mortgage to secure the same was recognized.

An execution issued on this judgment, and on the 22d of August, 1842, at the Sheriff’s sale, the plaintiff purchased the three lots for nine hundred and thirty-six dollars cash. Her Sheriff’s title was not recorded until after this litigation commenced. The Sheriff, it appears, released all the subsequent judicial mortgages upon the property.

After Ogehie's mortgage had become extinguished, both by payment and prescription, T. B. Ingalls caused his judgment to be reinscribed against B. M. Wellman, in the office of the Recorder of Mortgages, and issued his execution and caused the property to bo seized as belonging to him, Wellman. Since the seizure and institution of the suit, Wellman has died ; the fi. fa. is returned, and the suit is now prosecuted as an hypothecary action on the reconventional demand of Ingalls.

It is contended in this court on his behalf that by the reinscription of his mortgage it operated ass a general mortgage opon all property standing in B. M. Wellman's name; that inasmuch as the plaintiff’s title was not recorded, by the words of the Act of 1818, the sale was “utterly null and void to all intents and purposes.” Bullard & Curry’s Dig., 596. The cases of Perrou v. Maillan, 11 L. R., 489, and Lee v. Darramon, 3 Rob., 161, are cited in support of this position.

We think the manner in which Ingalls' mortgage was reinsoribed will prevent him from invoking the benefit of those authorities. The certificate of mortgages shows that the inscription was not absolute, but carried with it the former erasure or cancellation which had been marie in favor of this purchaser.

The mortgage is embraced in the certificate of mortgages in these words:

“ 5th. And the general one against B. M. Wellman, in favor of Thomas B. Ingalls, resulting from a judgment rendered by same court as above, on the 9th December, 1839, for six thousand one hundred and six one 69-100 dollars, interests and costs, being the reinscription made in this office on the 6th of August, 1849, of the same judgment recorded on the 13th of December, 1839, in this office; which original judgment was, on the 16th November, 1843, can-celled and annulled, bat so far only as it bears on and affect the three squares of ground above described, and no further."

It is not pretended bnt the original mortgage was properly cancelled by the Sheriff. 1 An., 10. What then was the effect of the reinscription ? We think it was merely to continue in force the judicial mortgage just as it existed previously. The mortgage had no greater force the day after its reinscription than it had the day before. The reinscription informed Ingalls, as it did all the world besides, that the judicial mortgage as to those lots had been cancelled. We do not think Ingalls can now bo permitted to gainsay this record which he has caused to be made in the office of the Recorder of Mortgages, where alone his judgment could acquire the force of a mortgage, even as against Wellman. This view of the case renders it unnecessary to consider what would have been the effect of a judgment recorded under like circumstances, against Well-man generally.

The judgment of tho lower court must, therefore, be affirmed.

Judgment affirmed.

       Lea, J., not having been present at the argument, took no part in this decision.


author: Vookhies, J.

text:
    City of New Orleans v. Alfred Rousseau.
    Although the assessment roll may be considered as not having the force and effect of a final judgment, yet a party will not be permitted in all cases to go behind it. On the contrary, he should not be permitted so to do, unless it be shown that the party had sought in vain, or was prevented by some valid cause from seeking the correction of the assessment roll in the manner pointed out by law.-*
    I PPEAL from the Pifth District Court of New Orleans, Augustin, J.

      Heistand & Levy, for plaintiffs. Collins, for defendant and appellant.
   Vookhies, J.

We think tho defendant’s exception, that he has not been legally cited, is waived by his answer, in which he avers that the description of the lots is defective and the assessment thereof not made in accordance with the requirements of the law.

The only question which remains to be determined, arises’ out of a bill of exceptions taken by the defendant on the trial below to the opinion of the Judge, in ruling out evidence for the purpose of showing, that White and other streets, which appear on the assessment roll,, as bounding the lots and' squares assessed, do not exist in the Second District of New Orleans, and that some of the streets which do exist, run so as not to cross each other, and do; not form a square, as set forth in the assessment roll, and that the description in the roll does not and cannot therefore correspond with any property in the district.

We do not think the Judge erred in excluding the evidence, as it could not have changed the result. The Act of 1850 prescribed the mode in which all taxable property should be assessed. The board of assessors was bound to deliver, on or before the first Monday of October, to the Recorder of the Municipality in winch the district assessed was situated, and for that part of the parish of Orleans, on the right bank of the river Mississippi, to the Justice of the Peace of that District, the assessment rolls, and to give immediate notice thereof, “ in order that any person aggrieved by such assessment might appeal and have the same corrected, if found incorrect.” The Recorder was authorized, on the appeal of the party aggrieved, made in writing,, stating particularly the correction desired, and on proof of the fact, to correct such- errors and to make the roll correspond thereto. After the expiration of the delay within which such corrections were allowed to be made, the Recorder was bound to issue one of the copies of the assessment rolls to the appropriate Tax Collector of the parish of Orleans. Session Acts of 1850.

It is clear, therefore, that if the defendant, who is appellant in this case, considered himself aggrieved by the defective description of his property, or of any other error committed to his prejudice,, he should have taken an appeal to have such error corrected in the manner and within the delay prescribed by that Act. It is now too late for him to do so. Although such assessment roll may be considered as not having the force and effect of a final judgment, yet we are not prepared to say, that a party should be permitted in all cases to go behind it. On the contrary, we think it should not be done, unless it be shown by cogent reasons that the party had sought in vain, or was prevented by some valid cause from seeking the relief to which he was entitled under that Act; and which, in our opinion, affords ample protection to the citizen whoso property may have been improperly assessed. It does not appear in this case, that the appellant had ever made any attempt to obtain such relief.

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


author: Vooroies, J.

text:
    Succession of Sarah A. Penny—Solomon Bloom, Appellant.
    Action to remove administrators, domiciled in Mississippi.
    Exception — that there had been no citation. By the Gourt: This objection may be considered not only as waived by the other reasons urged for the dismissal of the action, but by the appearance of the appellees, whereby it became unnecessary to make service on the curator ad hoc, on whom alone it could be made as the appellees were domiciled out of the State.
    APPEAL from the District Court, Seventh District, parish of East Feliciana, Duffel, J., presiding.

      Muse & Hardee, and MeVear for appellant. Sawyer, for defendants in rule.
   Vooroies, J.

Solomon Bloom is appellant from- a judgment discharging a rule taken' by him on Ann L. Foster and her husband, James J. A. Foster, domiciled in the State ol Mississippi.

In a former suit between these parties, involving the right to the administration of the estate, there was a judgment rendered by this court in favor of the appellees. See 10 An.

The appellant, in his petition, alleges that the judgment thus rendered imposed on Ann L. FosterT the beneficiary heir, and her husband, the condition, that thejr should appear in person to take the necessary oath, give bond, and before their departure from the State,, appoint an agent to represent them; that said Ann L. Foster was not in the.Stato at the time of filing her application for letters of administration, nor since; that she has never taken any other' oath than that which was taken by her before one Fdvsards, a justice'of the peace in the parish of Concordia; that the only agent appointed by her and her husband, was William B. Bouek,, of the parish of East Felici-ana, by act executed in the State of Mississippi, on the 23d of April, 1855 ; that the letters of administration were not granted to them until the 27th of the same month, and on the 12th of’ the ensuing month, said Bouek executed an authentic act,, whereby he refused to accept said agency; that said Foster and wife, having failed to comply with the requirements of the law within ten days from the filing of the decree in that case, have forfeited their claim to the administration, and the letters which have been granted to them,, should therefore be cancelled and annulled ; and that the succession is now wholly unrepresented' by any one within the jurisdiction of the court where it is open, in order to enable the creditors to assert their claims. Whereupon he prays, that said Ann L. Foster and her husband, may be ruled' to show cause why the letters of administration thus granted to them should not be cancelled, and that he be appointed in their stead; and that, as they are absentees, a curator acl hoe be appointed to represent them, and duly notified thereof,, so that said letters may be cancelled and annulled contradictorily with him.

A curator ad hoe was appointed as prayed for, but it does not appear that he evertook any part in this action.

The defendants, by their attorney, filed an excoptipn, claiming the dismissal of the application, on the following grounds, viz :

1st. “ That they have never been legally cited or notified of said demand! personally, nor has any one been so cited or notified, who is qualified to represent them; that no citation has been served upon them, or any one else, nor has any been prayed for as issued in said suit.”

2d. “Proceedings to remove an administrator cannot be commenced by a rule to show cause, that no rule has been obtained by order of the court or served upon them, and they are in no manner hound to notice or answer said petition.”

3d. “ The said Bloom has made no showing that he is a creditor of said estate; that he cannot, on a naked allegation that he is a creditor, disturb the administration in which other creditors are interested; that he is not a creditor on the tableau of distribution and statement of debts, filed by them as administrators.”

4th. “ That the petition is informal and defective, in that it does not set out the place of residence of the petitioner, as the law requires.”

‘ The Judge a quo sustained the exception and dismissed the appellant’s petition. We think he erred. The first objection urged in the exception is, that the appellees had never been legally cited or personally notified of the appellant’s demand. It is clear that this could not tend to defeat, but only to retard the progress of the action, by requiring the service of a copy of the petition and citation to be made on them. But this objection, it appears to us, may be considered not only as waived by the other reasons urged for the dismissal of the action, but by the appearance of the appellees, whereby it became unnecessary to make such service on the curator ad hoc, on whom alone it could be made, if at all, as the appellees Were domiciled out of the State.

The second ground of objection is untenable. The action was commenced by petition in the usual form, setting forth the grounds upon which the removal of the appellees as administrators was prayed for, and concluding with a prayer for the same to be done contradictorily with a curator ad, hoc, as the appellees could not be cited.

The other objections appear to us to be equally untenable. The admission of the appellees in the record shows, that the appellant was a creditor of the succession.

Under the Act of 1847, (Session Acts of 1847, p. 115,) the appellees were bound to leave a general and special power of attorney with some person in the parish where the succession was opened, or the adjoining parish, to represent them in all necessary acts relative to the administration of the estate, and to deposit in the office of the recorder an authentic copy thereof. We are, therefore, of opinion, the Judge erred in sustaining the exception.

It is therefore ordered and decreed, that the judgment of the court below be avoided and reversed; that the exception be overruled and the case remanded, to be proceeded in according to law. And it is further ordered, that the costs of appeal be paid by the appellees.

        Mbkkick, 0. J., took no part in this decision.


author: Spoeford, J.

text:
    Faucette, Davis & Co. v. City of New Orleans.
    The depositary owes no interest for the money deposited, except from, the day on which he became a defaulter by delaying to restore it. Code, 2919.
    xY. PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      jBeecher, for plaintiffs. Livingston, City Attorney.
   Spoeford, J.

On the 27th of March, 1849, the sum of $899 69, was deposited with the Treasurer of the city of Lafayette, for the plaintiffs.

This money was used by the city of Lafayette, being paid out by the Treasurer, upon orders by the finance committee, for the necessities of the city.

When the plaintiff's applied for it, they were told that the city had expended it, and could not then restore it, being short of funds.

On the 23d of February, 1862, the city of Lafayette was incorporated with the city of New Orleans, and its debt assumed by the latter city. Acts 186.2, pp. 66-6.

The Treasurer of New Orleans offered to pay the principal without any interest, provided the plaintiffs would give a receipt in full for their claim.

The plaintiffs declining this proposition, brought suit and recovered judgment for the sum of $917 84, with eight per cent, interest, from the 27th of March, 1849, ar.d the city has appealed.

The depositary “ owes no interest for the money deposited in his hands, except from the day on which he became a defaulter, by delaying to restore it.” O. C. 2919.

The time is not fixed with precision by the evidence. The only thing certain is that the city of Lafayette, upon application, declined to refund the money at some time before the annexation to New Orleans, that is prior to the 23d of February, 1862. Interest should be allowed only from that date, as it was the plaintiffs’ duty to show when the city was in default.

In the absence of a contract, or a special law, (neither of which is shown to have existed,) five per cent, per annum is the rate of interest in Louisiana.

It is therefore ordered, that the judgment appealed from be reversed ; and, proceeding to render such judgment as should have been rendered, it is ordered and decreed, that the plaintiffs recover of the defendant, the sum of eight hundred and ninety-nine dollars and sixty-nine cents, with five per cent, interest thereon, from the 22d day of February, 1852, until paid, and the costs of the District Court. It is further ordered and decreed, that the costs of this appeal be paid by the plaintiffs and appellees.

      Lea, J., not having been present at the argument, took no part in this decision.


text:
    Mrs. Nancy Fogle, wife of E. F. Fogle v. John T. Delmas.
    Interest is due by a depositary only from the demand for restitution. Code, 2919.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Koonts and Qrivot, for plaintiff. Goold & Stansbury, for defendant and appellant.
   Buchanan, J.

(Merrick, C. J., absent.) The plaintiff sues for the restoration of money deposited. The judgment of the court below was in her favor; and we think that judgment is fully justified by the evidence.

There was error, however, in allowing interest from the date of the deposit. It was only due from the date of the demand for restitution. C. C. 2919.

It is therefore adjudged and decreed, that the judgment of the District Court be amended ; that plaintiff recover of defendant, one thousand and ten dollars, with interest from judicial demand, (October 26th, 1853,) and costs of the District Court; those of appeal to be paid by plaintiff and appellee.


author: Spoffgrd, J.

text:
    Julia Haughton v. B. F. Haughton, her Husband.
    Defendant had summoned more than forty witnesses, and asked for attachments, which the court refused him without security for the costs of all the attachments exceeding six. JBy the Cowi't: There is no averment that he expected to prove anything material by the absent witnesses, nor that he was unable to give the security required. Much discretion must be left to the judges of the first instance in such a matter as this, in order to prevent the abuse of the process of the court. O. P. 4T2.
    'Where the witness had lived several months in defendant’s house, and defendant was present at the trial and cross examined witness, he cannot allege surprise, or claim a new trial, to inquire into the competency, or credibility of the witness.
    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      OlcoLt <& Woodridge, for plaintiff. It. & II. Marr, for defendant and appellant.
   Spoffgrd, J.

The defendant has appealed from a judgment of separation of bed and board, rendered against him in favor of the plaintiff, his wife, upon the allegation that his conduct, excesses and outrages towards her rendered their living together insupportable.

The appellant complains that the District Judge erred, in ruhng upon the trial that he should give security for the costs to be incurred by the issuing of more than six attachments for his absent witnesses, under Art, 472 C. P.

There is no averment that he expected to prove anything material by the absent witnesses, nor that he was unable to give the security required. Much discretion must be left to the judge of the first instance in such a matter as this, in order to prevent the abuse of the process of the court. The District Judge states that the defendant had summoned more than forty witnesses, and that he had reason to believe that the object of asking attachments for so many was to increase the costs.

As much of the testimony of the ten witnesses who were examined for the defendant has no hearing in his favor, this opinion of the judge was probably not without foundation. At any rate, there is no such showing upon the record that the defendant has been illegally deprived of any substantial benefit as would authorize us to remand the cause.

He complains, secondly, that the court erred in overruling his motion for a new trial, on the ground that he had just discovered that the principal witness for the plaintiff — who had been examined without objection on his part — was incompetent, by reason of her age: she not being of the age of fourteen years complete. The affidavit upon this subject shows only that a single person had expressed an opinion to that effect, but that he declined to make affidavit that she was not fourteen years of age. This of itself would have been a sufficient reason for refusing the application. But in the argument filed on behalf of the appellant, it is stated that this witness was “ a mere child, very small, apparently not more than twelve years old.” She had, moieover, lived several months in the defendant’s house; and as he was present on the trial and cross-examined her, we think he cannot allege surprise or claim a new trial to inquire into the competency or the credibility of this witness.

We do not think it necessary or desirable to enter into the details of a course of conduct, which, after but four years of married life, and while both parties are still young, has broken up a contract which nothing but death was intended to sever. A perusal of the evidence has impressed us with the conviction that it would be better for these people to live asunder, and that the law justifies the decree.

It is, therefore, affirmed, with costs.

         Lea, J., took no part in this decision.


text:
    Succession of Sargent Pratt.
    On the trial of an application for letters of administration, it is competent for the opponent to show that she was publicly acknowledged and held out to the world as the wife of the deceased; that all the property belonging to the succession was community property; that the opponent was ready to give security for the payment of all the debts ol the succession, and that the creditors were willing to accept such security.
    It would be competent for the court to protect the heirs by requiring the opponent, as a pre-requisite to the exercise of her rights as usufructuary of the community property, either to advance a sufficient sum to pay the debts of the deceased, or produce the consent of the creditors to her assumption of the debts, and to her furnishing security for their payment; and such assumption should be accompanied by a release of the heirs from all liability.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Paxton and Durant & Hornor, for opponent and appellant. Bonford, for appellee.
   Lea, J.

(Merrick, C. J., absent.) Ann O'Brien, who alleges that she is the widow of the deceased Sargent Pratt, is appellant from a judgment dismissing her opposition to an application for the administration of the succession of the deceased, and appointing one of the sisters of the deceased the administratrix of the same.

Prestí-died in July, 1855. His sister, Margaret Pratt, wife of Jeremiah Gollins, alleging that he had died intestate (having never been married), applied for and obtained letters of administration upon his estate, which, as it appears from the inventory, exceeded in value the sum of $23,000. On the 1st of November, 1865, the appellant alleging that she was the widow of the deceased, that his estate was free from debt, and consisted exclusively of community property, claimed to be put in possession of the entire property, as owner of one-half, in virtue of her right as surviving partner in community, and as usufructuary of the other half, in accordance with the provisions of the Act of 1844, regulating the disposition of community property.

After this application had been made, and before it had been acted upon, the administratrix obtained an order of sale of a portion of the property to pay debts, amounting to about $3300.

Further proceedings were stayed by the death of the administratrix. On the 22d November, 1855, Aphra Pratt, another sister of the deceased, applied for letters of administration, and was opposed by the appellant, who, reiterating the statements and demands set forth in her first application, alleged that there was no necessity for an administration, the succession being free from debt, and that her rights as owner of onedialf, and usufructuary of the other half of the estate, were such as to entitle her to the possession of the same upon complying with the requisites of the law. She moreover claimed a preference in the appointment of an administrator, should one bo deemed necessary by the court.

On the trial of the issues thus presented, the appellant offered to introduce several witnesses, who are designated in the bill of exceptions for the purpose of proving that she had been publicly proclaimed and acknowledged, and held out to the world by the deceased as his wife; that all the property belonging to the succession was community property, having been acquired since the establishment of their matrimonial domicil in Louisiana; that she was ready to give security for the payment of all the debts of the succession, and that the creditors were willing to accept such security; but the testimony thus offered was rejected, on the ground that the same could not be heard in a contest such as that presented on the triai.”

It is evident that this testimony was of a character to support the allegations contained in the opposition-^-to wit, that the opponent was the widow of the deceased, and that the property was all community property; and furthermore to sustain the allegation, that she was ready to assume and give security for the payment of the debts of the deceased, and that the creditors were willing to accept of the security thus offered. Whether the testimony, if it had been received, would or would not have proved the allegations, as set forth in the bill of exceptions, is not the question : for the purpose of testing the correctness of the ruling of the court, we must assume that the witnesses might have made such proof.

Had such proof been actually made, we have no hesitation in saying that the prayer of the petition should be granted. The heirs could have had no interest in provoking an administration, or a sale and perhaps a sacrifice of a portion of the property, exeept for the purpose of protecting themselves against liability for the debts of the deceased, or an increase of the same by the accumulation of interest. The appellant has offered to relieve them of any such liability, by assuming the debts and furnishing security, which the creditors, as she alleges, are ready and willing to accept.

It would be competent for the court to protect the heirs by requiring, as a pre-requisite to the exercise of her rights as usufructuary, that she should either advance a sufficient sum to pa}' the debts of the deceased, or that she should furnish, as she avers she can, the consent of the creditors that she shall assume and furnish security for the payment of the debts due to them ; but this assumption should be accompanied with a release of the heirs from all liability.

It is ordered that the judgment appealed from be reversed, and that the case be remanded for further proceedings to be had herein, in accordance with the views expressed in this opinion, and that the costs of this appeal be paid by the appellee.


text:
    Y. Quadras & Co. v. Steamship Daniel Webster, Captain and Owners.
    The measure of the carriers’liability is the value at the port of destination, of similar goods, delivered in good order.
    Where interrogatories are propounded to certain witnesses by1 name, “ and others,” and crossed without any objection reserved,' the depositions of Witnesses not named in the affidavit for commission, nor in the interrogatories, are admissable.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Collins, for plaintiff Hart & Glack, for defendants and appellants.
   Buchanan, J.

This is an aetio'n upon a contract of affreightment, for damage to twelve thousand cigars, on a voyage from New Orleans to San .Tuan de Nicaragua.

Rhe measure of darhage asstfmed hy the plaintiffs and adopted hy the judge a quo, is the invoice price, with ten per cent, added for charges and thirty per cent, for anticipated profits. We take the rule to he, that the value at the port of destination, of similar goods delivered in good order, is the measure of the carriers’ liability. Oakey v. Russell, 6 N. S., 60; Boyle v. Dickinson, ibid, 102; Porter v. Curry, 7 L. R., 240; Rathbone v. Neal, 4 Ann., 568.

That value is proved, in the present case, to have been $'600. Add $22 for costs of survey and certificate, and deduct the net proceeds of sales at auction, $188 72, — there remains a balance of $483 28, for which the ship is responsible.

There are several hills of exception in the record, of which only one requires notice.

The defendants excepted to the evidence of two Witnesses, Gilbert and Mancho, examined at Greytown, because their names are not found in the affidavit for commission, nor in the interrogatories. The district court did not err in admitting these depositions. The interrogatories were propounded to several witnesses by name, “ and others,” and were crossed Without any objection reserved. This case is covered by that of Denton v. Murdock, 5th Rob., 128.

The judgment of the district court is reversed; and it is adjudged and decreed that plaintiffs recover of defendants $433 28, with legal interest from October 21st, 1853, and privilege on the property sequestered, and costs of the district court; those of appeal to he paid hy plaintiffs.

       Lea, J., not being present at the argument, took no part in this decision.