text:
    No. 1307.
    Bernard Lapleine vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    In a suit by the father of a minor child for the latter’s separate use and benefit, the mother is not disqualified as a witness, because she does not testify for or against her husband but for or against the child, and the case is not affected by the provision of law giving to fathers and mothers the enjoyment of the estate of their minor children.
    When two causes co-operate to produce the damage resulting from a legal injury, the proximate cause is the originating and efficient cause which sets the other cause in motion.
    The duty of care and of abstaining from the unlawful injury of another applies to the sick, the weak, the infirm, as fully as to the strong and healthy, and when that duty is violated, the measure of damages is the injury done, oven though such injury might not have resulted but for the p euliar physical condition of the person injured, or may have been aggravated thereby.
    Thus, though the damage done to a child by an injury appears to be aggravated by a latent hereditary hysterical diathesis, which had never exhibited itself before the aooident and might never have developed but for it, the party in fault will be held for the entire damage as the dir.ect result of the accident.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      Ii. 8. Perry for Plaintiff and Appellee :
    A document placed in evidence by defendant, on cross-examination of plaintiff’s witness, without restriction, is to he considered as substantive and independent evidence.
    Testimony of a witness, otherwise unworthy of belief, is to have full weight, in so far as it is supported by other credible testimony, and particularly when the supporting evidence consists of an affidavit secured from the witness by the party against whom she testifies, and is put in evidence by him.
    The negligence of a parent or guardian cannot he imputed toa non sin genens, who is not herself in fault, Beach on Contributory Negligence, p. 127.
    When a latent disease may or may not develop into activity, without the intervention of some accident, and it is developed by an accident, the predisposition is not, and the accident is the efficient, proximate cause. The efficient cause is that which puts the others in motion. It need not be the sole or immediate cause. Defendant cannot show that plaintiff would have suffered as much had lie not wronged. 5 Otto 117; Sherman & Bedfield, 310; Sedgwick, vol, 1, page 60; note vii; Ibid, vol. ii, p. 362, note 6 ; Patterson, § 17, 13, 29, p. 26; Thompson, p. 1267, § 61; Sutherland, vol. iii., p. 434, note.
    Misconduct of parents after accident cannot affectthe rights of their child.
    Evidence, admitted under general averments, or no averments at all, is to have full effect. 16 Ann. 273; 20 Ann. 70, 241, 379; Louque, p. 234 (c).
    Barden of Proof. The rule is, eiincumbit probatio qui dicit, non quinegat. But if subject of negative proposition is specially in knowledge of other party, it will be taken as true, unless that party disproves it. The happening of a catastrophe which might have been prevented raises a presumption of negligence. These circumstances - may throw burden of exculpation on defendant. Res ipsa loquitur. G-reenleaf. § 79; Lawson on Presumptive Evidence, p. 112; Wharton on Evidence, § 367, 359, 360; Moak’s Underhill, pp. 310, 313. 315; 11 Wall 130; Am. Law Register (N. S.), 350, 363, note Hirst vs. Milmambuie, 46; Wise 489; Thompson on Negligence, p. 1227, note; 3. Res

      ipsaloguitur, pp. 1228, 1229, 1230; Day vs. Bailway Co., 35 Ann. 698; 37 Ann. 777; Patterson Accident Law, p. 434, § 375; Ibid, § 375.
    Jury can consider what it sees in visiting locus inquo, and the injured party in connection with testimony of witness.
    Damages, Measure of Damages. — Discretion of the Jury, C. C. 1934, 2315, 2316; Sutherland, vol. iii, pp. 711, 712 et seq.; Thomson, pp. 1256, §§ 44, 62, 63; Sedgwick, vol. 1 p. 44 ; Patterson, §§ 393, 394, 37 Ann 93.
    In torts a party committing a wrongful act is responsible for all direct injuries resulting from his wrongful act.
    It is not necessary that the damages be foreseen, as consequential damages from breach of contract must be contemplated by the parties. Sutherland, vol. iii, pp. 714, 20, 47, 48.
    Injured persons entitled to prospective damages. Thompson, vol. ii, p. 1263, § 47; Sutherland, vol. i, pp. 175,190, 193 ; vol, iii, pp. 266, 722; Sedgwick, vol. 1, p. 205; 17 Ann. 19 ; 22 Ann. 603; 23 Ann. 180 ; 35 Ann. 205; 38 Ann. 779.
    Assessing damages torts is the peculiar province. Sutherland, vol. 1, p. 810; vol. iii, p, 730 ; 10 Ann. 88; C. C 1935, § 3; 18 Ann. 26; 19 Ann. 362; H., p. 106 (g) No. 2 ; 12 B. 678 ; 37 Ann. 93.
    A document from which witness has refreshed his memory, and to the truth and correctness of which he has sworn, is admissible in evidence if not .per sc, inadmissable. It is admissable as independent evidence. Wharton on Evidence, § 516.
    An expert cannot testify as to his opinion before he has testified to the facts. It is only after he has testified to the facts that he may state his opinion. Bogers od Expert Testimony p. 48, § 31.
    A non-expert witness may sometimes state opinions, or conclusions such as to whether & person is intoxicated, or sober ; or sad, or suffering and looked bad, or eccentric, etc. Bogers, § 3.
    The report of experts cannot be considered unless they have been appointed and sworn, and have proceeded and have made their report, and same has been homologated pursuant to O. B. 142, 446, 448, 450, 451, 453, 454, 456.
    Excessive Damage. — 17 Ann. 19; 23 Ann. 180 ; 37 Ann. 705; 88 Ann. 778.

      D. Oaffery for Defendant and Appellant:
    1. Blaiutiff, in action of damage, must show the act creating the damage. When that fails, no recovery can be had. C. C.
    2. Where damages are asked for a resuH-, wholly unexpected and unnatural as a consequence of the act complained of, no recovery can he had.
    3. The resultant damage must be connected with the act, as proximate and efficient cause, by necessary concatenation.
    Sutherland on Damage, pp. 20 to 25 ; Sedgwick, 112 to 114 ; Beach Contributory Negligence, 32; Scheffer vs. B. B. Co. 105 XT. S. B. 248; 4 Col. Rep, p. 347.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff sues in behalf of his minor child, Marie Lapeine, to recover damages for injury inflicted upon her through the fault of the defendant company.

He alleges that in Api'il, 1885, Marie, with other children, was at play in the rear part of her father’s yard, on the inside of a plank fence separating said yard from the railroad track of- said defendant, when a train of cars belonging to the latter and loaded with split lumber passed along said track, and the stakes confining said lumber becoming loosed-or disarranged, the lumber broke away from its fastenings and tumbled off the car, part of it being precipitated over the fence and falling into plaintiff’s yard, striking the child, Marie, and inflicting on her the injuries complained of.

The evidence is, to our minds, conclusive on the following points, viz:

1. That the lumber was precipitated from defendant’s car over plaintiff’s fence and into his yard substantially in the manner charged.

2. That this was caused by the improper loading or insufficient fastening of the lumber and by the imprudent handling of the train, and is imputable exclusively to the negligence and fault of defendant.

3. That the child, Marie, was struck and injured by the falling lumber.

4. That the child was entirely free from any fault or contributory negligence of any kind whatever.

As to all the above points, except the third,' there is no room for the slightest dispute.

As to the third point, the evidence is conflicting, but after a thorough scrutiny, we are perfectly satisfied that Marie was struck and injured by the lumber.

The child was undoubtedly in the yard and near where the lumber fell. The lumber was pitched over into that yard. Immediately afterward the child was found with a wound upon her head and bruises on her body, and she stated she had been hurt by the falling lumber, although, by reason of her age and condition, she was not admitted as a witness.

The colored nurse, Mary Coleman, was the only immediate witness of the injury to the child. She is a curious example of utter depravity and insensibility to the obligation of truthfulness. She pretends to have been bribed by both parties, and her only complaint was that neither had paid the promised bribe. She was put on the stand by plaintiff and testified on every point in her favor. The counsel for defendant then produced a written statement made by her before a notary, and under oath, some time before, in which she contradicted nearly everything she had just been saying. Of' course, such' á witness is unworthy of belief : but it is a significant fact, that in' the statement above referred to, which had been obtained from her by the agents of defendant and was produced by it on the trial, she stated positively That Marie was struck and hurt by the lumber. On this point we believe she told the truth. She is confirmed by Mrs. Lapleine, the mother of Marie, who saw the child when she was withdrawn from the lumber that had fallen upon her. Her testimony was objected to on the ground that she was incompetent under the provisions of Art. 2281, Rev. C. C., which declares that “ a husband cannot be a witness for or against his wife, nor a wife for or against her husband.”

It is clear that this is not the husband’s suit, but that of the child. The petitioner himself expressly declares that he sues “ in his capacity as father to his minor child, Marie, and for her separate use, benefit and advantage.” The circumstance that, under Art. 221, C. C., “ Fathers and mothers shall have, during marriage, the enjoyment of the estate of their children until their majority or emancipation,” subject to the obligation of supporting and educating them, is not sufficient to disqualify either of them as witnesses in cases in which their children are parties. If it would disqualify either, it would disqualify both, since the law gives the enjoyment to “fathers and mothers.”

There is much other corroborating and confirmatory testimony, and the whole, taken together, completely overwhelms the efforts of one or two employees of the railroad to establish that Marie was not struck by the lumber, but was some distance from where it fell, and was hurt by tripping and falling as she ran away in alarm. Not only is this theory inconsistent with all the facts and other testimony, but it is utterly insufficient to account for even the apparent physical injuries which Marie undoubtedly received.

The foregoing points being thus settled, it conclusively follows that the defendant is responsible for the damage legally occasioned by its negligent fault.

As to the nature and extent of the injury, it is shown, without any semblance of contradiction, that up to the moment of this accident Marie, then eight years old, had been a bright, intelligent, active and thoroughly healthy child. From that moment she became, and has remained, a constant invalid, seriously affected in mind and body, her nervous system shattered, subject to headaches, to attacks of nausea and vomiting, to frequent and sudden fainting or falling fits, emaciated, indisposed to physical or mental exertion, dragging her limbs in walking, and otherwise afflicted. At the .time of this trial about two years.had elapsed since the accident, and, though slightly improved, the child continues, to a great extent, affected, as above, indicated.

The medical testimony indicates that it is doubtful when or whether ever she will entirely recover. If the foregoing injury and suffering have been occasioned by the accident as the legal, proximate cause, it would be difficult to say that the verdict of the jury for $7500 was excessive. But defendant maintains that the physical injuries directly inflicted upon the child were slight and unimportant and utterly inadequate of themselves to produce the disastrous results which have been manifested ; that these results have been occasioned by the peculiar constitution of the child, who inherited from its mother a hysterical tendency or diathesis, the development of which has intervened as the operative and efficient cause of her affliction and sufferings, and that the accident is not, therefore, the true ccmsa, causans, the proximate and efficient cause casting responsibility on defendants.

We are by no means • satisfied that the external manifestations indicate conclusively the extent and nature of the injuries received, or that the shock and derangement of the nervous centres and spinal cord may not have been sufficient to produce like results in an ordinarily constituted child.

It is, however, proved that the mother of the child is subject to hysteria; that hysteria is, in many cases, heritable, and that the symptoms of the child’s affliction are, in many respects, of a hysterical character.

But it is very certain that the child had never exhibited the slightest symptoms of hysteria or other constitutional disease prior to this accident; the medical testimony does not establish that hysteria is necessarily or universally inherited, and it does not appear that, but for this accident, Marie might not have passed her entire life without the slightest development of hysteria.

Admitting, therefore, that the child had a latent hysterical diathesis, in order to escape liability it would devolve on defendant to show that such diathesis was by itself a sufficient independent cause which would have operated in producing or aggravating the damage independently of the accident.

In this defendant has entirely failed.

If the hysterical diathesis concurred with the accident in producing the damage, in determining which of the two is the proximate cause, we must inquire which was the cause that set the other cause in motion.

In. the language of the Supreme Court of the United States, ‘‘ the proximate cause is the efficient cause, the one that necessarily sets the other causes in motion.” Ins. Co. vs. Boon, 95 U. S. 117.

We are cited to a Colorado case which holds that where the physical condition of the person injured is, at the time of the injury, such that the injuries caused by tbe negligence are thereby aggravated, the railway is not liable for that aggravation. P. P. C. Co. vs. Barker, 4 Col. 344.

We think, however, the doctrine is not sound and is not in accord witli the weight of authority. The duty of care and of abstaining from injuring another is due to the weak, the sick, the infirm, equally with the healthy and strong, and when that duty is violated the measure of damage is the injury inflicted, even though that injury might have been aggravated, or might not have happened at all, but for the peculiar physical condition of the person injured.

Thus, in one case, a person afflicted with scrofulous disease was injured by the negligence of a municipal corporation in failing to keep its streets in repair, and suffered damage greatly in excess of what he would have suffered but for his disease; yet the court held that the corporation was bound to keep its streets in repair for the sick and in" firm as well as for the well, and held the city liable for the whole damage. Stewart vs. Ripon, 38 Wis. 584.

In another case a pregnant woman was injured, resulting in malformation of the child carried and its subsequent delivery, dead ; and the author of the negligence was held liable for the whole damage. Shartle vs. Minneapolis, 17 Min. 301, lo.

A railway was held liable for cancer following at an interval of three weeks after a blow on the breast of a female. B. C. P. Railway vs. Kemp, 61 Md. 74; (see also) Ry. vs. Buck, 96 Ind. 346; Jucker vs. R. R., 52 Wis. 150; Delic vs. R. R., 51 id. 400; Sauter vs. R. R., 66 N. Y. 50; Beauchamp vs. Mining Co., 50 Mich. 163; Barbee vs. Reese, 60 Miss. 906; Patterson’s Ry. Acc. Law, §§ 29, 278; 2 Thomp. Neg. 1099.

The inheritance of a hysterical diathesis (if it existed) was a misfortune, but certainly not a fault, in this child ; it in no manner diminished her right to protection from injury by the fault of defendant; prior to this accident she had never suffered from this latent constitutional taint; but for the accident, she might never have suffered from it; the accident was the direct, immediate and efficient cause which set in motion all other causes which created or aggravated the damage ; and the defendant is justly bound to answer for these deplorable consequences of his fault. There is evidence, however, showing that the child’s affliction and injuiyhave been aggravated by the injudicious conduct and treatment of her mother. For such aggravation of the damage suffered, it goes without saying that defendant cannot be held liable. We need not particularize as to the nature of this conduct, except to say that it does not reflect upon her sincerity, but only on her injudicious sympathy and encouragement and excitement of the child’s disordered nervous system.

This and some other considerations lead us to reduce the damages allowed by the jury.

It is, therefore, ordered and decreed that the verdict and judgment appealed from be amended by reducing the principal thereof to $5000 and tnat, as thus amended, it be affirmed, appellee to pay cost of appeal.

Judgment amended.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 1310.
    P. G. Gibert vs. David Siess.
    "When a planter executes his notes, and discounts them with his factor, who places their proceeds to his credit on account, the same may be sued upon via ordinaA'ia by the latter, the right being reserved the former to prove a want or failure of consideration therefor.
    APPEAL from the Twelfth District Court, Parish of Avoyelles, Overton, J.

      J. O. Oappel and David Todd for Plaintiff and Appellee.

      Wm. Voorhies and Thorpe & Peterman for Defendant and Appellant:
    1. As between the parties to a contract, suit cannot "be brought on the accessory, ignoring the existence of the principal obligation. Ward vs. Douglas, 22 Ann. 463,.
    2. When mortgage notes are given by planter to* commission merchant exclusively to secure future advances in account current, the latter cannot foreclose on the mortgage notes without reference to the account current, he must sue for settlement and liquidation of account current, and simultaneously foreclose on the mortgage notes for the balance, wbicb may be struck in bis favor. Beyond this he has no rights. Durrive vs. Key; Lanata vs. Bayhi, 31 Ann. 229; 7 Ann. 298.
    3. Dor facts see statement in brief as to principal eventual obligation of which the mortgage notes were accessory. 20 Ann. 154, C. C. Arts. 3292, (3259) 3293, (3260) 10 Boh. 383; 2 Ann. 971; 5 Ann. 231 ; 7 Ann. 298; 18 Ann. 235; see also 4 L. 268 ; 8 L. 276, 531; 16 L. 374; 9 Bob. 482; 12 Ann. 529 ; 15 Ann. 646 ; 16 Ann. 437; 21 Ann. 668; 24 Ann. 36 ; 28 Ann. 357 ; 30 Ann. 84, 868 ; 34 Ann. 852.
    The exception that petition discloses no cause of action is fatal to plaintiff’s suit. The evidence elicited on the merits, shows the propriety of remitting him. to the proper proceedings in order to determine the rights of the parties advisedly. See Hix vs. His Creditors, 2 South Bept. 391.
   The opinion of the Court was delivered by

Watkins, J.

Suit via ordinaria is brought upon two promissory notes secured by mortgage. They were executed by the defendant as collateral security for his account with the plaintiff as his commission merchant.

To the petition defendant tendered an exception of no cause of action, and, it having been overruled, he filed an answer in which he pleaded the general issue, the discharge of the debt evidenced by the notes and mortgage, and a demand in reconvention for the sum of $1500. On the trial the judge a quo gave the plaintiff judgment for $3400, but rejected his demand for the recognition of his mortgage; and allowed the defendant $715 37i on his reconventional demand. There is, also, a stipulation in the decree to the effect that it shall not become executory until certain notes, other than those sued on are canceled and returned to the defendant.

From this judgment the defendant has appealed.

For relief at our hands his sole reliance is placed on his exception, which he insists was improperly overruled.

His insistance is that, if he owes anything to the plaintiff, it is only a balance of account, and not on the notes.

That this balance is represented by the notes sued on as collateral security. That he has no cause of action on the notes, or for the foreclosure of the mortgage securing their payment, but is restricted to suit “for a liquidation and settlement of accounts.”

This objection is technical.

In addition, this defense has served defendant every purpose he could have expected. For, on the trial the plaintiff did not rest his case on theintroduction of the notes and mortgage in evidence, but he offered his own depositions — twice taken — with all of defendant’s accounts, from the commencement of his transactions in 1880, to their termination on the 10th of March, 1885, showing a debit balance of $3,794 15.

The defendant was not restricted in the introduction of evidence in his favor. He pioduced and filed plaintiff’s account against him for 1883-4. He -was examined as a witness in his own behalf, and upon his evidence the reduction of the plaintiff’s demand was secured, and the allowance was made on his reconventional demand.

We do not understand that any complaint is made of the correctness of tiie judgment appealed from, in any essential particular.

This case comes fairly within the principle announced in John Chaffe & Sons vs. Whitfield, recently decided at Monroe, in which we held that a mortgage note furnished by a planter as collateral security for advances to be made by his commission merchant for the working of a plantation, maybe sued directly by the holder for the exact amount of the advances; and that, in the absence of pro.of of a want of consideration, and in presence of evidence, showing that the advances have been made, payment of the note maybe enforced.

Such was the view entertained by our immediate predecessors in Lanatta vs. Bayhi. 31 Ann. 229.

Such a note not only secures the debt on open account, but liquidates it, and enables the factor to place it with his creditors or bankers. Mix vs. Creditors. 39 Ann. 628; Pickirsgill vs. Brown. 7 Ann. 307; Morris vs. Cain. 39 Ann. 730.

In this instance the defendant’s notes were discounted and the proceeds placed to his credit. Same were disbursed for his account, and at the close of the season nothing remained to his credit, and there was nothing applicable to the credit of the notes at their maturity, except the amount for which credit was given in the judgment. Lehman, Abraham & Co. vs. Godbury, 40 Ann. 219.

There appears to be nothing to be adjusted on open account. It was balanced and closed, and the only sum that is due to the plaintiff is that remaining due on the defendant’s discounted paper.

Had the proof disclosed a further sum unexpended by the defendant he would have been entitled to credit therefor, likewise.

This case is easily distinguished from an ordinary suit upon a promissory note and mortgage, against which unliquidated demands cannot be urged in compensation. We think defendant has had the fullest opportunity of showing the want or failure of consideration of the notes, and that is all that justice and equity entitle him to demand

Judgment affirmed.


author: MoEnery, J.

text:
    No. 1306.
    The State of Louisiana vs. Cyriaque Washington and Cleophile Brown.
    "When a party is indicted and notice of the venire list is served on him, and the indictment is afterward nolle prossed and an information is filed against the accused at the same term of court, charging the same offense, it is not necessary to again serve a copy of the venire on the accused.
    "When the accused has made several distinct confessions at different times, the State cannot be requited to prove that the first confession was obtained without threats, violence or undue influence, before interrogating the witnesses as to other confessions.
    The State cannot be controlled in the order of introducing these confessions in evidence.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Ooeo, J.

      J. W. Ogden, District Attorney, and James Andrew, District Attorney , for the State, Appellee.

      L. J. Dueote and J. 77. Ducote, for Defendant and Appellants.
   The opinion of Che Court was delivered by

MoEnery, J.

The accused were indicted by the grand jury of the parish of Avoyelles, under Sec. 85.1, Revised Statutes, and were charged with burglary, with intent to commit rape.

The accused were arraigned on said indictment, and the trial fixed for the 14th of June, 1888. A copy of the indictment was served on them, and on the 7th day of June a list of the venire for that term of court. The district attorney, discovering some flaw in the indictment, filed an information against the accused under the same statute, and charging the same offense. A copy of this information was served oh the defendants on the same day it was filed, the 13th day of June. The case was called for trial on the 14th day of Juue, and the district attorney dismissed the prosecution under the indictment. The case was fixed for trial on the 16th day of June.

The accused complain that they were entitled to the jury list two days before their trial. The jury list was served on them, as appears by the sheriff’s return, on the 7th day of June. It was not necessary to again serve a copy of the venire on the filing of the information. The information was filed at the same term of court, for the same offense, and they had notice of the jury list duly served, which had been summoned for that term of court.

The law was fully complied with. The accused had notice two whole days, before they were tried, of the jury that was to pass upon their case.

There were several confessions made by the accused. The accused objected, on the trial, to the interrogations of the witnesses upon the several confessions, without the State first showing that the first confession had been proven and had been made without force, violence or threats. The first confession may have been obtained by improper means while the others may have been made voluntarily. There is nothing to show but that all the confessions were voluntary. It was a matter in the discretion of the district attorney as to the manner in which he should introduce the evidence and as to which confession he should use as evidence on the trial.

There is no force in the objections made by defendants. The accused, it appears from the record, had a fair and impartial trial, an d there were no errors on the trial shown by the bills of exceptions.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 1314.
    Succession of Marcelite Guidry.
    The law does not require that proceedings be instituted to remove an executor who has failed to furnish security, when ordered to do so, under the provisions of Article It C. Cf. 1766.. The law is self-operative.
    The failure to furnish the security within the delay fixed, ipso faoto removes the delinquent. A vacancy is thereby created instantly, which can be filled, after due notice, by the appointment of a dative executor.
    A child who has furnished alimony and thus maintained au ascendant in need is not entitled to recover the value thereof from the latter’s insolvent succession. Having paid a debt, he cannot claim to be a creditor. A transfer of his claim conveys no right which he did not possess.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Henry L. Garland for Opponent and Appellant.

      Laurent Dujpre and T. L. Tansey, contra.

   The opinion of the Court was delivered by

Bermudez, C. J.

The account presented by Laurent Dupré, as dative executor of the deceased, is opposed by Lastie Dupré, a mortgage creditor for upwards of $2000.

The opponent charges that Laurent Dupré is not the dative executor of the deceased, because his appointment is unwarranted and null, for the reason that the executor appointed by the deceased was never regularly removed from the trust by any judgment of court, and that, therefore, Laurent Dupré has no capacity to represent the succession.

He further charges, that the sum of $1440 allowed in the account to Mrs. Alcée Dupré, for board, lodging, nursing, etc., to the deceased, during two years, including herlast illness, is not due.

He, besides, opposes other items which do not appear to be seriously contested.

The district court maintained the validity of Laurent Dupre’s appointment, allowed half of the sum to Mrs. Dupré, part with privilege on the proceeds of the real estate sold, and part as an ordinary claim It also passed upon the other items.

The opponent, having died, his executor appeals from this judgment, and Mrs. Dupré asks that it be amended, so as to allow her the entirety of the claim in her favor, on the account.

So that there are only two questions involved : -first, the validity of Laurent Dupré’s appointment; second, the reality of Mrs. Alcée Dupre’s claim and the security allowed for payment.

i.

It might suffice to say that the opponent cannot be heard to attack the appointment of the dative executor, not only because he does so collaterally, but also because he lays no claim himself to the-trust; but it may be preferable to determine the question at issue.

It appears that Mrs. Guidry had appointed Alcée Dupré as the executor of her will, dispensing him from giving security, and that he was confirmed and qualified as such ; that Lastie Dupré, the present opponent, availing himself of the privilege accorded by Article R. C. C. 1677, obtained a peremptory order which was duly served, requiring the executor to furnish security, within thirty days after notice in the sum of $2780, exceeding by one-fourth the amount of his claim ; that the delay allowed expired without such security being furnished; that thereupon, Laurent Dupré petitioned for letters of dative testamentary executorship and his application was ordered to be published; that, at the end of the time fixed for opposition, none having been filed, he was appointed, took the oath and furnished the bond required by law.

The contention is, that before this application could have been filed and the appointment conferred, it was an essential condition precedent, sine qua non, that Alcée Dupré, the regular executor, should have been proceeded against, in a direct action and if the circumstances justified, he could then be removed.

In support of this position, counsel refer to a number of authorities, the correctness of which cannot be disputed; but which have no application to the present matter, for the reason, that the issue now presented is raised on a state of facts, controlled by a law which was not in existence when those cases were decided and which has served as a guide for the proceedings in the instant case.

Indeed, the article referred to, 1677 R. C. C., is the result of an amendment of Article 1670 of the code of 1825, made by the legislature of 1868, (p. 117).

It justifies the proceedings instituted by Laurent Dupré, from beginning to end.

It declares, in as emphatic language as could be used, that should the executor, who has been' ordered to furnish securiiy, fail to do so within the delay allowed, the failure shall, ipso facto, work an immediate removal and the judge shall appoint a dative executor.

The legislature possessed the power of enacting such a remedial law. It has done so, making it self-operative.

To contend otherwise, is to hold that the law means “shall not ipso facto,” when it says, “shall ipso factoin other words, to make it say the reverse of what it does.

No proceeding was therefore necessary to remove Alcée Dupre. The moment that the delay allowed expired, after notice, without his giving the demanded security, he ceased to be the executor of the deceased and a vacancy was created, whieh could he and was filled.

II..

The next matter to be considered is the item of <$1440, in favor of Mrs. Alcee Dupre, recognized by the dative executor, for expenses of last illness.

It is contended that the claim, if it ever existed, belonged to Aleée Dupré, that it could not have been enforced by him, in as much as it was for alimony furnished by him to his necessitous mother, the deceased ; that, if 'it could be urged, it formed part of the community property between him and his wife; that the claim cannot be recovered by the latter, but by the former only; that the dation en paiement which he made to her ofit, since his mother’s death, has not validated it, any more than if it had not passed from him to her, and that it is not entitled to a privilege.

There can be no doubt that Mrs. Guidry being in penurious circumstances, her son was bound in law and in conscience, to provide for her, as well in'health as in sickness; for it is written, that children are bound to maintain their father and mother and other ascendants who are in need. R. C. C. 229; N. C. 205.

The French text of Art. 229 of the R. C. C., as found in the Code of 1825, and which is taken from Article 205 of the Napoleon Code, reads:

“Les enfans doivent des alimens a leur pére et mére et autres ascendant qui sont dans le besoin ; ” litterally meaning :
“ Children owe alimony to their father and mother and other ascendants who are in need.”

The word “ doivent” (owe) implies a debt imposed upon them bylaw in that respect, for the satisfaction of which a civil action lies. (R. C. C. 233.)

The fulfillment of that obligation does not transform the child into a creditor, capable of claiming reimbursement in any contingency. He has paid a debt imposed upon him by law, and simply remains in the condition of a debtor who has discharged an obligation.

The case would be diffierent if, instead of being the only child, the son had had brothers or sisters, for in that case, as each and all would have been bound to provide entirely, as it were in solido, for the wants and necessities of the mother, the child performing his obligation could have had recourse against the other issue for contribution.

He could, had the mother died solvent, have made good his claim against their share in the succession, but such is not the case here.

Mrs. Guidry has died insolvent, leaving property burdened for much more than it realized, and which is the common pledge of her creditors.

To cast upon that estate the charge in question, would be to shift the burden of alimony from the shoulders of the children, to that of the creditors.

Had a stranger provided for Mrs. Guidry as her son has done, he would surely have had the right of claiming payment, for the obvious reason that the law has not made it his duty to maintain the needy, and recognizes in him, where he has not done so in a spirit of liberality, the right of repeting, even with a privilege, for a certain period, the amount of his disbursements.

After an elaborate discussion on the subject now under consideration, MarcadG, concludes that the duty of maintaining the needy ascendants,is a debt imposed by law on the descendants. Vol. 1, p. 534, No. 709 et seq.

Baudry'Lacantinerie, an eminent professor, says that those obligations are dictated by the law of nature. The father has given life to the son and the latter must assist him in preserving his own, if his means are sufficient. This author looks upon the obligation as a sort of restitution. ‘‘ Parentibus alimenta non praestatis, sed redditisIniquissimum enim quis dixerit patrem egere, quum films ejus abundaveriV Vol. 1, p. 339, No. 589.

Laurent, in his admirable commentaries on the French Code, propounds the question, whether he who has supplied alimony can claim payment for the same, and says that the solution involves serious difficulty.

He does not, however, hesitate to state that a first point is certain, namely : that, according to general principles, there exists no room for repetition. He who has furnished the alimony has paid what he owed, for, alimony is a debt. Therefore he to whom it has been furnished has received what was due him. Repetition could be admitted only where one, believing himself bound, was not really so, and has in error supplied the alimony. In such a case the principle of claiming what was unduly paid,,would control. Vol. 3, p. 107, No. 79.

Fuzier*Herman, who edits with surprising ability anew edition now being published, of„ the French Code, to which are appended notes and references which exhibit great researches and exactness, announces, that the care and assistance furnished by a son to his father in need can be viewed only as the fulfillment of a filial duty, and cannot create in favor of the son- a claim against the succession of the father. Hence, if the father by his will has acknowledged himself a debtor to his son, because the latter had supplied his wants, this disposition will be considered as constituting a liberality.

Reference is made to a decision of the Court of Rennes, 9 November, 1878, and to Aubry & Ran, t. 6, p. 73, section 547, note 3.

See Code Civil, annoté par Fuzier Herman, Art. 205, p. 283, section 3. Repetition des aliments., Nos. 64 and 65.

Those authorities settle the question beyond cavil.

It will not avail, in the instant case, to say that Mrs. Dupré is a creditor, while her husband may not have been one.

She holds by a elation en paAement from Mm, and has acquired no greater right than he himself possessed. As he could not have claimed, she cannot do so in his place.

She is not separated in property.

Admitting that she attended exclusively to Mrs. Guidry and could have claimed remuneration, any earning and payment would have fallen into the community, and compensation, if due, would have been asserted by the husband, as head and master. But it has been said that he had no claim to urge for the alimony supplied.

The item of $1440 placed on the account, should have been stricken out entirely as not due either to Alcée Dupré or to his wife, and the creditors of the deceased must be relieved from the burden of the same.

We do not consider that we are called upon to pass upon the correctness of the judgment of the lower court, reducing certain small items placed on the account, and which were opposed, as we hear of no complaint from either side.

It is, therefore, ordered and decreed that the judgment appealed from be reversed so far as it allows Mrs. Dupré part of the item of $1440 figuring in her favor on the account, and that said amount be stricken entirely from said account as not due by the succession.

It is further ordered and decreed that in other respects said judgment be affirmed, the costs to be paid equally by appellant and appellee.


author: Fenner. J.

text:
    No. 1309
    David B. Thompson vs. G. C. Walker, Testamentary Executor.
    Where only a partial settlement of a partnership has been effected and where certain matters have been expressly reserved for future settlement and adjustment, an action will properly lie for a further and complete settlement.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. AUm, J.

      JBreamx & Bmoudet for Plaintiff and Appellee.

      I). Oaffery for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner. J.

This case was before us at our last term at this place, upon exceptions filed by the defendant and maintained by the lower court. We then reversed the judgment, overruled the exceptions and remanded the case to be tried on the merits. Thompson vs. Walker, 39 Ann. 892.

As stated in that opinion, the action is fora settlement of a partnership between the parties. One of the exceptions was that the partnership had been finally settled. We stated that this exception properly belonged to the merits.

The defendant now answers setting up again that the partnership has been fully settled, by a notarial act, and that the only matters outstanding and which it is the object of the present action to recover, are individual personal claims by plaintiff against defendant, which cannot be enforced under the guise of an action for settlement and against which he pleads prescription.

As indicated in our former opinion, the notarial act referred to is not, and does not purport to be, a final settlement, but only a partial one. The matters touching which the present controversy arises, were expressly exempted by the following language, viz: that they “ are hereby specially reserved in this settlement and are to be finally adjusted, settled and concluded by referring the same to arbitrators,” etc. The arbitrators have never been appointed or called for by either party, and no offer or demand for arbitration is now made. Plaintiff’s right to sue for a completed settlement of the partnership so as to embrace these matters cannot, therefore, admit of question.

They are matters arising out of the partnership relations and recognized by both parties, in the notarial act referred to, as properly involved in the partnership settlement, and defendant cannot now be heard to deny it.

The evidence leaves no doubt as to the correctness and justice of plaintiff’s claims, and Ahíect. of this technical defense seems to be to subject tin They consist of funds retained by Walke ... cnership, out of the share coming to Thom} ____. jjreiense of certain rights claimed by Walker which are the subjects of dispute and were reserved, as stated above, in the settlement. The effect of the judgment now rendered, is to settle this dispute, to complete the settlement and to award to Thompson his share of the partnership funds which had been retained by Walker, as liquidator.

Judgment affirmed.


text:
    No. 1313.
    Cleonise Savoie et al. vs. Julius Meyers et al.
    In case the vendor really and seriously contemplates and agrees to sell a tract of land at. a price which is fixed and certain, and the vendor, while offering and proposing to buy the land, obtained also a transfer of a judgment upon the false assertion that it operates as a judicial mortgage on the land sold and in respect to which the vendor is really deceived, held that on appropriate allegations and proof, the transfer of the judgment may be annulled, and the amount that has been realized thereon, recovered of the von* dee.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Baillio. J. ad hoe.

      W. S. Frasee for Plaintiffs and Appellants.

      Thos. H. Lewis and Laurent Dupre, for Defendants and Appellees.
   The opinion of the Court was delivered by

Watkins, J.

On the 12th of November, 1885, Cleonise Savoie, the widow of Zenon Broussard, acting through Louis Stelly as her agent, conveyed by authentic title to the defendants a tract of twenty arpents of land, anda certain judgment, entitled Zenon Broussard vs. Alcée Dupre, administrator of the estate of Cyprien Dupré, deceased, for the aggregate amount of $6000.

The price stated in the act is $500.

The plaintiffs in this suit are the widow and heirs of Zenon Broussard, and it has for its object the annulment and revocation of the transfer of the judgment and the recovery of the amount that has been realized by the defendants under it.

The principal averments made by the widow, Cleonise Savoie, are substantially as follows, viz: That, really and in fact, there was no sale contemplated or made of the judgment, and that no price was paid therefor. That, previous to the execution of the act of sale, she and her agent were, by the representations of the defendants, induced to believe that there was a defect in the title to the twenty arpents of land which they proposed to buy, and that this defect consisted in a judicial mortgage resulting from the aforesaid judgment, and which had not been cancelled.

That the defendants proposed to buy the land of her for the price of $500, but they required that the judgment should be transferred to them also, in order to cure the defect of title. That they caused their lawyer to make an abstract of title, showing that this judgment had not been cancelled, and sent it to her. That the $500 was paid and received as the price of the land exclusively. That, at the time, she was near eighty years of age and necessitated to transact all of her business through an agent, and that the one she employed was a country gentleman unskilled in legal proceedings. That she and her agent subsequently discovered that they had been deceived and led into error with regard to said judgment operating as a mortgage on the land, and that the title was perfectly clear and unincumbered; but 'that the defendants were well aware at the time that their representations were untrue, and that same were made for the purpose of fraudulently obtaining a transfer of the judgment; and that they procured and caused the power of attorney and act of sale to be prepared in furtherance of that end.

She represents that said judgment was obtained in 1867, and had been once revived, and that same had been in the hands of two different attorneys without anything having been realized. That at the date of the transactions herein recapitulated, no property of the estate of Cyrien Dupre appeared on the inventory, out of which the judgment could have been realized; that neither she nor her agent knew of any; and the defendants were fully apprised of their ignorance of such property, and availed themselves of it to procure the transfer of the judgment.

She avers that this judgment was a community asset and owned jointly by her deceased husband and herself, and that at his death the children of the marriage inherited his share thereof, and that the only reason she transferred their interest, as well as her own, was that she regarded it as of no value. That soon after the defendants obtained the transfer of it, they procured an order for the sale of more than fifteen hundred acres of land in the parish of St. Landry, and about eighteen hundred acres in the parish of Lafayette, as the property of the estate of Cyprien Dupré, and caused the same to be sold for near $12,000, of which they were the beneficiaries. That, at the time of the transfer, the defendants well knew of the existence of these large and valuable tracts of land, and withheld the information from her and her agent with the fraudulent purpose of getting possession of the judgment, and of realizing on it; and that they are liable m solido to plaintiffs, and should be condemned to pay them the sum realized, to the amount of said judgment, and interest from judicial demand.

She specially avers that the transfer of the judgment was made in error on her part, and consummated in fraud, and without consideration on the part of the defendants; and that, in respect to the interest of the heirs, it was otherwise a nullity, having been the sale or assignment of the property of another.

Under proper averments the heirs join their mother and allege the nullity of the sale of their interest, and specially charge fraud and deception on the part of the defendants in procuring the transfer.

They join their mother in a prayer for the annulment of the transfer of the judgment, and for the recovery of the proceeds realized under it.

Ophelia Broussard admits her signature to thé power of attorney and unites with her mother in all of her allegations. There is no demand for the revocation of the sale of the land.

In limine, the defendants tendered as exceptions the pleas of no cause of action and want of tender to them of the amount of the purchase price.

These having been overruled, for answer defendants aver that their purchase of the land and the judgment was bona fide and for a sound price. They deny any and all allegations of fraud and error, and aver that this suit was brought for the purpose of regaining what plaintiffs had lost by a bad trade.

They further aver that, at the time of this said purchase, they had no knowledge of the existence of the lands which were subsequently sold; that same had never been inventoried in the succession of Cyprien Dupre, nor had they been assessed for taxes; but that same had been ferreted out by skilled land-experts they had employed. They charge knowledge of, and acquiescence in, said sale by the heirs of Zenon Broussard, and plead same as an estoppel against them.

In the alternative they set up a demand in reconvention for moneys disbursed in attorneys’ feos and other expenses incurred in searching for and procuring the sale of property of the succession of Cyprien Dupré, tlie proceeds of which was applied to the satisfaction of the transferred judgment, and aggregating in amount $2711 35, and they annex a bill of particulars to their amended answer, and pray for a judgment in soKdo against the plaintiffs therefor.

On the trial of these issues there was a verdict and judgment for the defendants, and the plaintiffs have appealed.

I.

It is perfectly obvious from the foregoing statement, that the defendants’ exceptions were properly overruled. The suit does not seek to set aside the sale of the land. It remains intact. Plaintiffs’ contention is that Cleonise Savoie never made a sale of the judgment, but merely transferred it to the defendants as the purchasers of the land, and at their suggestion and request, and in order to free the land of a supposed judicial mortgage. On this theory there was nothing due to the defendants, and no tender to be made. The sale vel non of the judgment is the very question we are to decide; and for us to say that their suit must be abated because of plaintiffs’ failure to make a previous tender of the purchase price of its sale, would be to anticipate our own decree. Besides, there is an element of such uncertainty in the matter as to remove this from the class of cases in which a tender could have been successfully made.

The fact that the mother of the heirs, who made the transfer of their share in the judgment, is one of the plaintiffs in this suit, cannot affect their rights, nor can we perceive any valid objection to their being united in one suit.

They have each a common object in view. Their interests are the same. The mother makes a judicial confession of the nullity of the transfer of the judgment, and upon that score there is nothing further to adjudge. The sole remaining question is whether the transfer of the judgment was and is a nullity in respect to the defendants as the transferees. II

The salient facts of this case, which are necessary to be detailed, are substantially as follows, viz :

In Oct. 1885, Miss Ophelia Broussard received from A. Levy, managing partner of the firm of J. Meyers & Co. the following letter:

Miss Ophelia Broussard, Caranero, La.

Miss — Our mutual friend, Mr. Joseph Bloch, informs me that you are the owner of a piece of land on the west side of Opelousas. Please advise me at your early convenience whether it is for sale; if so, what is the lowest cash price. Awaiting your early reply, I remain, with regards, Yours truly, Alphonse Levy.

The defendants were informed that the land was for sale, and the cash price was $509. Defendants agreed to give $500 for the land, provided the title was good, stating that they would have their lawyer to examine the chaip of title and send Mr. Stelly, the agent, an abstract of it. Within a few days the defendant, Levy, wrote Mr. Stelly the following letter, and inclosed the abstract of title therein, viz:

Opelousas, La., Oct. 21, 1885.
Mr. Stelly, Caranero, La.:
Dear Sir — My delay in answering was caused by our attorney making out abstract of title, copy of which I herewith enclose:
The judgment lias never been cancelled, and as the original holder is now dead, the mortgage would bear until the judgment is prescribed by limitation. 6ur attorney advises me to get a transfer of the judgment, and that would place title beyond any further risk. I have been put to a great deal of trouble and expense lately on account of imperfect titles to lands held by us in full warranty, and hope that you will excuse me if you find me unnecessarily particular. Under the circumstances I will agree to purchase the land for $500 cash provided the judgment is transferred to me in proper form with the land.
Awaiting your reply, I remain, yours truly,
Alphonse Levy.

This abstract of title contains the following data, viz: That this twenty arpent tract of land was sold in the succession of Cyprien Dupré on the 15th of January, 1873, for $830 on terms of credit, and again in 1878 for the same amount in cash. At the foot of the abstract this statement is appended, viz :

“N. B. — The judgment of Zenon Broussard against the estate of Cyprien Dupré, deceased, has never been cancelled.”

While this correspondence was conducted by, and the intet view took place with, Levy, he was acting for his associate, Meyers, as well as himself. Indeed, there is no express denial of this.

A few days after these negotiations were concluded, Cleonise Savoie executed a power of attorney authorizing Stelly to make a transfer of the judgment and the land, and soon after he passed the authentic act of sale. To this act there was appended no certificate of mortgages. It was expressly waived. During the ‘progress of the negotiations, the defendant, Levy, explained his seeming anxiety in respect to the sufficiency of the title to the land, by stating it to have'been defendant’s intention to construct a rice mill on the property.

It is in proof that, previous to the execution of the power of attorney and title, defendants sent their attorney to see and interview the agent with reference to the parchase of the land.

On this subject the agent says: “Believing the statement of Mr. Levy in his letter, I advised the old lady to transfer the judgment, 10 cure the defect of title which Meyers claimed to exist.” He further states that on the occasion of defendants’ attorney’s last visit, he left a power of attorney with him, which he had the old lady to sign, “ as she was willing to sell the land and clear the title.”

He says that said attorney stated to him that the one he left; was the form necessary to be followed, and that as soon as that power of attorney was signed, I could then come and pass the sale of the land and transfer the judgment.” That, in a day or two afterwards, he went to Opelousas and completed the transaction, the said attorney having drawn up the act of sale.

At the time of these transactions none of the plaintiffs were aware of the existence of the lands that were subsequently sold as the property of the estate of Cyprien Dupre. On this subject Steliy says, that if he had known of their existence, or that of other property, he would not have induced Mrs. Broussard to transfer the judgment for the purpose of clearing the title to the land. He states explicitly that “ not a cent of consideration was given for the judgment, and the only reason for transferring it, was to clear the title which Mr. Levy claimed to be defective. The $500 was merely the price asked,' and given for the land.” That he exhibited and read the letters of Levy to Miss Ophelia and Mrs. Broussard, and that\they all consulted together and agreed to let the judgment be transferred to cover the defects in the title. Neither Mr. Levy nor Mr. Meyers ever offered to buy the judgment by itself, nor have they ever spoken to me about the judgment, except in the abstract as bearing a mortgage.”

He says that he has since ascertained that all the repreesntations in reference to the judgment operating a judicial mortgage on the land, were untrue in point of fact, and that the title was perfectly clear.

These statements of Steliy are corroborated in every essential particular by Miss Ophelia and Mrs. Broussard. Miss Ophelia says that she remembers that, before the sale of the land, Mr. Ogden offered $750, part cash and the rest on a credit, for the twenty arpents of land, and the offer was refused because enough cash was not offered. Other evidence in the record establishes that the land was worth more than $500. Mr. Levy says, as a witness, in speaking of the letter he wrote Mr. Steliy, that “in making the offer of $500 for the twenty arpents of land, I was under the impression that the land was bounded on the east by the railroad. Some time after the offer was made, and before the completion of the sale of the land and judgment, and on inquiry, I found that there were intervening tracts or lots between the railroad and the said tract. Tins discovery lessened, m my mind and that of my partner, the value of the land. We were not willing, after this discovery, to pay for the land the price first offered.”

Mr. Levy did not communicate this fact, of such apparent importance, to Mr. Stelly, and ho states that between the date of this discovery and the date of the sale he did not see him. Yet he accepted the title and paid the $500 originally promised for the land. The defendants’ attorney, as a witness, states that Mr. Levy came to see him and requested him to go to the parish of Lafayette “in order to purchase a piece of land near Opelousas, stating in substance that he would give $500 for the piece of land, meaning, I think, 20 arpen ts, provided a certain judgment already attended to in this case would be transferred with the land.”

This attorney was asked this question, viz:

“Q. What inducement did you offer Mr. Stelly, plaintiffs’ agent, to transfer the judgment? Eor what purpose was the transfer made?
“A. The conversation between Mr. Levy and myself having occurred something over two years ago, I am not able to state positively the whole conversation that took place between us; but the impression that was made upon my mind was that the cause, or one of the causes for the transferring of this judgment with the la/nd, was in order to remove a/mj question as to the title of the land.'1'1

Upon making an examination of the Levy letter addressed to Stelly, he says; “I consider that the said document embraces about the same proposition that I was instructed to make.”

It appears that the judgment in controversy had never been recorded in the book of mortgages of the parish of St. Landry, and if, indeed, it had been so recorded, a judicial mortgage would not have resulted therefrom, because it was rendered against the administrator of the succession of Cyprien Dupré, and had only the effect of liquidating the debt and making it payable in due course of the administration.

Mr. L. Dupré, another attorney of the defendants, says as a witness : “I knew the judgment did not affect the twenty arpents of land at that time, and I never told any one that it did.”

In answer to a question by plaintiffs’ counsel, Mr. Dupré said :

“The conversation to which you allude, took place some two years ago. I cannot recollect any but parts of that conversation, as I have stated in my examination in chief. In is probable that Mr. Levy mentioned the matter of the judgment to me. I know he seemed very anxious as to the title of the land.” The question under consideration was the abstract of title, and that date and instrument were referred to.

It appears from the evidence that defendants were at, and previous to the date of the sale in controversy, engaged in a mercantile business in the city of Opelousas, and devoted considerable attention to land speculations and investments in that vicinity. It appears that, notwithstanding the objections urged by the defendants to the want of proximity of the land to the railroad, they accepted the title, paid the $500 in cost, and entered into possession thereof, but nothing further is heard of the erection of a rice mill thereon. They subsequently sold the land. Their attention appears to have been immediately directed to the collection of the judgment. Another lawyer was consulted and employed with that view. The services of experienced land-experts were at once secured in pursuit of same object.

On the 2d of December 1885 — only twenty days after the transfer— the defendants, acting through their recently employed counsel, filed a petition in the District Court of the parish of St. Landry, in which they represent themselves to be the transferors of said judgment, on which there is a balance remaining due of $6000 and that they are entitled to have same executed. They represent that there is property which still belongs to the estate of Cyprien Dupre, “ some of which is situated in the parish of St. Landry, and which should be sold to satisfy said judgment as far as it will go.”

To this petition there is appended a list, of the lands referred to. Reference to the list shows that there were 1552 44-100 acres. That all of them were entered at the Land Office in April and May 1860, and are situated in townships seven and eight, and ranges two and three.

On the same date an order was granted for their sale for cash, and same were sold on the 6th of January, 1886, with the exception of one small lot, to A. Levy & Co. for $3100. On the 11th of January, 1886 ■ — only five days after the foregoing sale — the same parties filed another petition and procured another order for the cash sale of other lands of the estate of Cyprien Dupre, situated in the parish of Lafayette, a list of which is appended thereto. An examination of it discloses that all of these lands were likewise entered in April and May, 1860, and are situated in townships ten and eleven, and ranges three and four. Of them there are 1805.46 acres. On the 17th of February, 1886, there were sold and adjudicated to A. Levy & Co. a sufficient quantity of these lands to aggregate the sum of $2435.40, and to another party $168.68, and leave remaining unsold 798 acres. By these two sales there was yielded the aggregate amount of $5696.08, less the expenses of sale, and within less than three months from the date of defendant's acquisition of the judgment.

Leonce Littel testifies that he was employed by Alphonse Levy, one of the defendants, on the 21si of November, 1885, as a surveyor, to locate the lands which were situated in St. Landry parish — those above mentioned. He says: “I returned on the evening before Thanksgiving day (November 25, 1885,) after hewing spent three days in locating said lands. * * At the time he employed me he told me that I need not mention for whom I was locating the lands. The lands in said list are not worth less'than three dollars per acre, average cash valuation.”

He says that “ most of said lands are good and cultivable.” The gentleman who abstracted the titles of the lands which were sold in St. Landry states that he was employed by the defendants on the 13th or 14th of November, 1885, only a day or two after the transfer of the judgment.

In the month of December following he visited the Parish of Lafayette and abstracted the titles to the land sold in that parish in the month of February, 1886.

There are many other facts and circumstances which might, with equal propriety, be given a place in this opinion, as having an important bearing on the issues involved, but those already cited are quite sufficient to determine the validity of the sale.

III.

To much of this testimony the defendants objected, and excepted to the introduction of same in evidence; and particularly to that part of it tending to contradict, or explain the recitals of the act of sale and transfer, in respect to the consideration, on the ground that there was no allegation in plaintiffs’ petition charging that such recitals were made in error. We are of a contrary view. There are several allegations which we have quoted, directly to the effect that Mrs. Broussard never sold or transferred the judgment for any consideration; that none was offered or paid by the defendants; and that the $500 mentioned in the deed as the price thereof, was the price of the land, exclusively. These averments wore ample, and quite sufficient for the attainment of the object aimed at. The testimony was properly admitted to the jury.

IY.

The defendants’ counsel urgently press upon our attention, what he considers a fatal defect in the initiatory proceedings — the want of a proper default, or putting in mora, upon the theory that this is in the nature of an action of damages ex quasi contractu, for the passive violation of a contract. But, 'in this, we feel bound to disagree with the learned counsel, for whose views we have the greatest respect. This is in no proper or legal sense an action of damages. It is a suit for the proceeds of the sale of property of the succession of Cyprien Dupre, which were applied to the satisfaction of the judgment in controversy, and which were illegally in the possession and under the control of the defendants, and who unduly received the.same. In such case the want of a previous amicable demand should have been excepted to previous to default; after answer, such a plea is unavailing.

V.

It is'quite unnecessary for us to protract this opinion for the purpose of summing up, discussing and making an application of the facts herein enumerated. No useful purpose would be attained by commenting on the motives which influenced the actions of the defendants, their agents and employees ,in the premises. It will suffice for us to state our conclusions in reference to the matter in hand.

They are, that it was the sole object and purpose of Mrs. Broussard to sell r,he twenty arpent tract of land to the defendants for the stipulated price of $500. That it was the real purpose of the defendants to surreptitiously obtain the control of the judgment with the view of realizing on it as they did, and the possession and acquisition of the land was a secondary consideration with them. That when Levy stated in his letter addressed to Stelly, on the 21st of October, 1885, “ that the mortgage would bear (on the land) until the judgment is prescribed by limitation,” he must have known, as his attorney, Laurent Dupre,'did, that there was no mortgage resting against the land,*' and, knowing this, he must have intended to create a false impression upon the agent’s mind, as it did. That at the time of the transfer to the defendants, and before, they were fully advised of the existence of the Bands of the estate of Cyprien Dupré which they caused to be sold soon after, and their value and availability constituted the motive for the acquisition of the judgment. >

That Mrs. Broussard and her daughter and agent, were not aware of their existence, and had no convenient opportunity of ascertaining it. That, considering that the gratuitous transfer of the judgment was the result of artifice, and misrepresentations of the defendants, which snperinduced error on the part of Mrs. Broussard, and which, if sustained, would cause the plaintiffs great injury, same should be annulled.

The Code declares that “fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created of continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience to the other.” B. C. C. 1847.

Not only should the transfer of the judgment be annulled and set aside, but the defendants’ should be sentenced to make restitution or the amounts they have received.

But justice demands that the plaintiffs should allow such reasonable sums as may have been necessarily expended in the search, recovery and sale of the land.

But upon a careful examination of defendants’ bill of particulars, and the evidence adduced in support of same, we are of the opinion that some reductions should be made, and the following is a list of items that are disallowed or diminished, viz :

The price of the land, disallowed..........................$ 500 00

Clerk’s fees and cost in Lafayette, disallowed............... 81 35

Surveyor’s fees, diminished by............................. 150 00

Services of C. C. Duson, disallowed........................ 300 00

$ 1031 35

Total amount of reductions, aggregating one thousand and thirty-one and 35-100 dollars. This amount being deducted from the total credit claimed, $2,711 35, will produce us the true amount of credit to which the defendants are entitled, viz : $1680.

There is another item of credit claimed on the bill of particulars, viz: “Deduct 40 acres sold in error, $60 00; and 160 acres in dispute, $723 69=$783 69.” The proof on this question is not quite clear, and, for the purposes of justice, we will not conclude either party, but allow the credit, reserving the rights of the plaintiffs in another suit.

We find the amount realized to be..................$5,696 08

Amount to be deducted............................ 1,680 00

Amount to which plaintiffs are entitled............$4,016 08

One half of this sum is due to the plaintiff, Cleonise Savoie, and the residue to the heirs of Zenon Broussard jointly and in indivisión — the whole sum to bear legal interest from judicial demand.

On the whole this is not such a case as should make the verdict of the jury of peculiarly binding force. It is stated to be a fact that the trial was a protracted one; many witnesses were interrogated in their presence; numerous deeds and documents weie offered in evidence; and many perplexing questions of law are involved. There is no very serious conflict of testimony. Under these circumstances the jury may well have been misled as to the determinative facts, or decided the case under a misapprehension of the law. We deem it' our duty, under a solemn conviction of the justice and equity of the plaintiffs’ demands', to set their verdict aside and proceed to render a different judgment.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury and the judgment of the court a qua thereon based, be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the sale and transfer of date November 12, 1885, in so far as the same purports to transfer and convey to the defendants the. judgment in controversy, be and the same is annulled and set aside; and it is further ordered, adjudged and decreed, that the plaintiffs do have and recover of and from the defendants in solido the sum of five thousand six hundred and ninety-six and eight one-hundredths dollars, with legal interest from the 14th of July, 1886, same being the date of judicial demand, subject to a credit of the sum of one thousand six hundred and eighty dollars.

It is further ordered, adjudged and decreed, that the plaintiffs’ rights be reserved to claim the sum of $783 69, as above specified, and which has been allowed to defendants as a credit.

It is further ordered, adjudged and decreed, that all costs of both courts be taxed against the defendants an cl appellees.

On Application por Rehearing.

Counsel have confined their application to alleged errors in the calculations made in our opinion and make claim for an increased allowance on defendants’ reconventional demands.

1. An examination of the figures has disclosed one error, and that consists in our having taken as the basis of our calculation the amounts stated in the prooes verbals of sales. We think that was wrong. We now take the amounts stated in the defendants’ bill of particulars, which shows the net balance after costs have been deducted, viz:

Proceeds of sale in St. Landry...................$2997 30

Proceeds of sale in Lafayette.................... 2451 68 — $5448 98

In lieu of our former balance............................... 5696 08

Difference 247 10

2. We do not consider the item of $81.35 established by the evidence. It forms no part of the cost of the sale of land in Lafayette parish.

3. With regard to the item of $150 deducted from the surveyor’s fees, his own receipt only shows that he received $50, and the parol evidence does not satisfy us that the defendants paid anymore for that service.

4. We think the deduction of $800 from Mr. Duson’s claim is but equitable and just. The only proof of the amount defendants paid him is his receipt. It is for $860 in full for services rendered in ferreting and locating properties belonging to the estate of Cyprien Dupre, said lands being situated in St. Landry, Acadia, Lafayette and Vermilion parishes, and for general services in the Baudoin case, and attending to the matter of Severin LeBlamc; all pertaining to the succession of Cyprien Dupre.

(Signed) “ W. W. Duson.”

He was not summoned or sworn as a witiiess. No explanation is furnished of the character or nature of the services he rendered. It appears that no land was found or sold in Acadia, or Vermilion parishes. It does not appear what connection there is between the transactions under consideration and “ the Baudoin case” or “ the matter of Severin LeBlanc.” Considering the absence of proof, we think $500 a liberal allowance.

The opinion allows a credit of $1680. We will allow $247 10 in addition — $1927 10. This, we submit, is quite a large allowance for the collection of $5448 98, particularly when the whole work was accomplished in less than ninety days, and through ex parte proceedings. But of this sum, $247 10, there has been carried into the calculation made by us the sum of $60, as shown by defendants’ application. It must be deducted. The additional credit will then be $187 10. But a rehearing is unnecessary.

It is, therefore, ordered, adjudged and decreed, that our former decree be and the same is corrected by allowing the defendants the additional credit of one hundred and eighty-seven and ten one-hundredtlis dollars, and as thus corrected and amended it remain undisturbed.

But inasmuch as we have made one reservation in behalf of the plaintiffs, we also reserve the defendants’ right to sue for the items that are disallowed, viz: $81 35, $150 and $300, aggregating $531 35; but this reserve is not to affect the finality of our decree.

Rehearing refused.


author: McEnery, J.

text:
    No. 1312.
    Olivia McCall vs. A. B. Irion et al.—Chaffe et al. Warrantors.
    In a petitory action, exceptions filed “by a defendant, the allegations of •which, to be sustained, require the introduction of evidence of title upon which the exceptor must rely to maintain himself in the possession and ownership of the property, should be referred to the merits.

      A. party in possession of immovable property by an apparent judicial title cannot force the plaintiff to a trial on an exception that he must first bring a separate and distinct action to annul the judicial proceeding under which defendant relies for title.
    Such a proceeding affords the defendant alone an opportunity to offer his evidence of title.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Overton, J.

      B. North Oullom, Jr., for Plaintiff and Appellant.

      Thorpe & Peterman and A. B. Irion for Defendants and Appellees.
   The opinion of the Court was delivered by

McEnery, J.

John Graham Wilson purchased, in 1857, from Sarah Akenhead, wife of John Akenhead, immovable property, situated in the parish of Avoyelles, one mile below Ilolmesville, containing some eighteen or nineteen hundred acres, being the undivided half of the Revelry plantation, for the price of sixty thousand dollars, payable in instalments, the last for $18,600 falling due on the 1st of April, 1861.

The notes were secured by mortgage and vendor privilege. John G. Wilson failed to pay the last note. Sarah Akenhead died shortly after her sale of the property to Wilson.

John G. Wilson confessed judgment on said note, with recognition of mortgage and vendor’s privilege, in favor of George R. King, the executor of Mrs. Sarah Akenhead. Judgment was obtained on this confession, and it was made executory on the 31st of October, 1886. Execution issued on the judgment, and the property described in the act of mortgage, the undivided half of Revelry plantation, was seized and sold at sheriff’s sale on the 5th day of January, 1857.

Walter Akenhead and Sarah McMoth were the last and highest bidders, and the property was adjudicated to them for the price of $4500. In his return on the execution, the sheriff stated that the purchasers had failed to comply witli their bid. Walter Akenhead and Sarah McMoth, however, entered into possession of the property.

The sheriff’s deed to them was never recorded until after the institution of the suit.

Walter Akenhead died in 1879, and his portion of the property was sold at succession sale and purchased by Henry M. Payne, on the 22d day of November, 1879. Payne sold this portion to A. B. Irion, on the 24th day of February, 1861. Mrs. Elizabeth McMoth’s portion was seized and sold under a writ of fi. fa. issued in execution of the judgment of Gertrude B. Akenhead, tutrix, vs. William and Jennie McMoth. and was purchased by John Chaffe & Sons, who sold the property to Thomas D. Miller. A. B. Irion and Thomas D. Miller are the present possessors of the property acquired by John G. Wilson from Mrs. Sarah Akenhead. John G. Wilson died in the city of New Orleans in 1879.

Mrs. Olivia McCall, the plaintiff, instituted this suit against A. B. Irion and Thomas D. Miller, the parties in possession of said property and alleges in her petition that she is the sister and only legal heir of John G. Wilson ; that her deceased brother was the owner of the property acquired by him from Sarah Akenhead until tiie day of his death, the 14th day of February, 1879. She alleges that he had never been divested of ownership of said property by legal process or conventional transfer, and that on or about the 5th day of January, 1867, Elizabeth McMoth and Walter Akenhead, during the absence of her brother from the parish of Avoyelles, took possession of the undivided half of the property known as the Revelry plantation, and that they never acquired title to said property or any portion thereof, and that, having no right or title to said property, they could not convey a legal title to said property, and that Alfred B. Irion and Thomas D. Miller are in possession of said property without legal right, and that they are possessors in bad faith. She prayed for judgment decreeing her to be the owner of said property and for a moneyed judgment against each of the defendants.

The defendants, Irion and Miller, answered and called their vendors in warranty, H. M. Payne, warrantor of A. B. Irion, and John Chaffe, Christopher Chaffe and W. H. Chaffe composing the firm of John Chaffe & Sons, the warrantors of Thomas 1). Miller. The warrantors appeared and excepted to the action. They allege that Walter Akenhead and Elizabeth McMoth became the purchasers of said property at a judicial sale and obtained a regular sheriff’s deed to the same, and that the plaintiff cannot ignore the judicial proceedings by which John G. Wilson was divested of his title and possession, nor can she contest said proceedings in any other way than by a direct action to canoel and set them aside, and prayed for a dismissal of the suit. The plaintiff ñJed a motion to refer this exception to the merits. The motion was overruled. On the trial of the exception, judgment was rendered in faivor of the warrantors. Prom this judgment the jilaintiff has appealed.

The plaintiff’s suit is a petitory action founded upon the title which her brother, John G. Wilson, acquired by purchase from Sarah Akenhead, and with which she says he never parted by any legal process or conventional transfer. There is no allegation in the petition of the facts disclosed on the trial of the exception. The defendants and warrantors on the trial of the exception, by documentary and oral evidence, set out the title upon which they, on the trial on the merits, would rely to be maintained in the possession and the ownership of the property.

The plaintiff could not, on the trial of the exception, offer any evidence as to her title. The exception alleged matters which it required evidence to sustain, and of such a character as could only he considered on the trial of the case when at issue and on the merits. The authorities referred to by appellees to support the position taken by them on the exception, were all cases in which there was a trial on the merits, and do not sustain the position that, before bringing this suit, the plaintiff was required to bring a separate and distinct suit' to set aside the judicial proceedings under which Walter Akenhead and Sarah McMoth went into the alleged ownership and possession of tlie property.

The judge a quo erred in annulling the motion to refer the exception to the merits.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and this case be remanded to the lower court to be proceeded with according to law, the appellees to pay costs of the appeal.

Fenner, J., recused on the ground of affinity to Warrantor Payne.


text:
    No. 1,318.
    Mary E. Glaze, wife, et al. vs. C. C. Duson, Sheriff, et als.
    A dation tn paiement by a husband to his wife, whereby she assumes and agrees to pay debts of the husband to his vendors, is a contract not authorized but prohibited by law, and does not pass tho property from the former to the latter
    A dation en pviement of property consisting of movables and ,of an interest in real estate, for ^ne and the same price, is indivisible, and must stand or fall as an entirety; but this is not the case where two distinct valuations have been put on each class of property.
    A contract which sets forth two distinct considerations, for two different objects, although for one main purpose only, is legally divisible, and will be maintained as valid in part» notwithstanding the other part be absolutely void, as prohibited by law.

      APPEAL from the Thirteenth District Court, Parish of St. Landry. Kstilette, J.

      Thomas U. Lewis, for Plaintiffs and Appellants.

      Kenneth Baillio, for Defendants and Appellees :
    1.Plaintiffs cannot be heard to set up exceptions as means of defense, and to have them tided separately, and in advance of the merits. This system of pleading and practice is confined to defendants. C. P. 20.
    2.Contracts between husband and wife as a general rule are forbidden. C. C. 1790; 30 Ann. 203. Thoir capacity to contract is exceptional, and limited to certain specified cases. C. C. 2446,1 Ann. 301; 2 Ann. 433; 4 Ann. 65; 5 Ann. 600; 14 Ann. 601, 21 Ann. 466 ; 23 Ann. 439; 26 Ann. 375; 27 Ann. 173; 28 Ann. 758; 30 Ann. 293; 33 Ann. 532,
    3.The wife, whether separated in property by contract or by judgment, or not separated, eannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage. C. C. 2398. Such contracts are prohibited, and are absolutely null, and the creditors of the husband may disregard them, and seize property so transferred to the wife without resorting to an action of nullity. 1 Ann. 301; 2 Ann* 483; 4 Ann. 65; 5 Ann, 600; 14 Ann. 601; 21 Ann. 466; 23 Ann. 439; 26 Ann. 375 ; 27 Ann. 193; 28 Ann. 758; 30 Ann. 293.
    4.Whatever is done in violation of a prohibitory law is null. C. C. 12.
    5.The prescription of one year has no application to contracts between husband and wife, which are prohibited by law. See authorities referred to in Ho. 3.
    6.A judgment affirming a dation en paiement made to the wife adds nothing to it. 30 Ann. 226.
    7.A dation cn paiement, in which the wife assumes the debts of the husband is null, and such assumist vitiates the whole contract, which is one and indivisible, and avoids the whole contract. See authorities in Ho. 3.
    8.A contract is morally impossible if forbidden by law. C. C. 1892.
    9.Anintervenor claiming property under seizure must show conclusively that the property is his.
    10.On the dissolution of an injunction defendants are entitled to 20 per cent on amount of the judgment as damages. O. P. 304. Also to counsel fees as special damages. 17 L., 263; 4 Ann. 304; 12 Ann. 239; 2L. 102; 5L. 246; 14 Ann. 333.
    11.A plaintiff in injunction is, however, not entitled to counsel fees as damages. See Ho. 10; 19 L. 357; 13 Ann. 449,193 ; 14 Ann. 311, 757, 826; 10 Ann. 563.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff enjoins the sale of certain property, seized by a judgment creditor of her husband, and charges that it belongs to her, for having been given to her by him, in payment of her claims against him.

The property consists in movables and in a two-third interest in certain real estate.

The defense is, that the dation en paiement is an absolute nullity, for the reason that the wife has, by the act, assumed anterior claims, debts due by her husband, and that such assumption is expressly prohibited by law.

There was judgment annulling the dation, as concerns the interest in the real property, but maintaining it as to the movables, as to which the injunction was perpetuated.

There was a reserve made in favor of plaintiff for the assertion and vindication of what rights she may have, in some other proceeding.

The deftndauts pray for an amendment of the judgment by an allowance of damages sustained in consequence of the wrongful issuance of the injunction.

The plaintiff also asks that damages be allowed her for the wrongful seizure of the property, and which consist in her liability for counsel fees.

The case was ably argued by counsel on both sides, and the reasons assigned in writing by the learned judge a quo show that it received at his hands an elaborate and thorough examination.

The act of elation enpaiement enumerates the items of liability of the •husband to the wife, showing it to amount to $4751.

It shows that, in order to secure her against loss, he gives, assigns, sets orer and delivers unto her, stock and farming utensils and his two-third interest in certain real estate, that seized by the judgment creditor and now claimed by the plaintiff.

The price is credited with the sum of $1615, and the rest $2900, due by the husband to the Tucker heirs, his vendors, is assumed by the wife, with the distinct statement that the same will be paid to them by her.

It is evident that this contract between a husband and a wife not being authorized by, conies within the ban of, article 1790 R. C. C., which expressly prohibits all transactions between such parties, when the same are not formally sanctioned and legitimated.

A long line of precedents establishes bey ond dispute, that the capacity of such parties to contract is restricted to cases specially mentioned, and that it is immaterial, whether the wife be or not separated in property from the husband. She is not, in any case, permitted to bind herself or her property either with or for her husband, for debts due by him, whether before, or after marriage.

It is true that there are precedents, from which it appears that the wife has been recognized the right of acquiring encumbered property, the amount secured by anterior mortgages or privileges being deduct' ed from the purchase price, but there are also casi s in which a different doctrine has been formerly announced.

All tlie authorities may well be reconciled by the simple distinction that a wife may acquire cum, onere, without making herself personally liable, while she is not allowed to do so where she assumes to pay the debt as her own, the debt of her husband.

The reason for this is obvious, that in the first case she retains the . amount and takes the property with the privilege of surrendering itf in the event of an hypothecary action or the like, without incurring any persoual obligation, should it not realize sufficiently to satisfy the debt, and that, in the second case, that of assumption, not only would the property be liable to seizure and sale, for the judgment of the debt, but besides, would she, in case of deficiency, be personally responsible, and her separate estate subjected to the payment of the wanting amount.

Hence, the laborious effort of the plaintiff to establish that she did not assume, but acquired cum onere. This is unavailing, as the fact is indisputable that she accepted the elation, with the express understanding that she assumed the debt of her husband to his vendors, binding herself to pay it to them.

The argument has no force, that a married woman can legally accept a dation en paiement by her husband, even though she agrees to assume to pay a debt of his, secured on the property at the time of the the contract between them, provided the transaction enures to her benefit.

The distinction might have more weight were the Spanish' law which once prevailed here still in existence, but such is not the case 61st Toro; 7 M., 465.

No reasoning has been offered, or authority quoted to support the proposition.

The contract must or not be valid, at the date of its formation, and cannot be made to depend upon contingencies, particularly when the rights .of third parties may be affected thereby.

Were the contract between the husband and the wife in this case one between a third party and the wife, a question might well arise, whether the wife would acquire such property for her own account, and whether it would not be a purchase for the benefit of the community.

The spectacle would be presented of a wife having no more than $1615 in cash, and no prospect of acquiring more, purchasing property for thrice the amount on hand.

The law does not favor speculations of such a character by a married woman. It watches with as much solicitude over them and their property as it does over minors and their estate. 16 Ann. 215.

The act of dation does not discriminate in the price, which is one for both, the stock, the implements of husbandry and interest in the land, and the transaction being a unit, cannot be legally divided.

It cannot stand as an entirety, and must, therefore, be completely undone and fall, with the declaration that the property which was the object of it Dot having passed from the husband to the wife, was liable to seizure by the former’s creditors.

The dation having been made in violation of a proMMtary law is a nullity, and the asserted writ may be proceeded with.

We think that the execution of a money judgment having been as-rested by the injunction, and the writ having been dissolved as wrongfully obtained, the seizing creditor is entitled to special damages for attorney’s fees in obtaining the dissolution, which may be put down at $150.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed so far as it maintains the dation of the movables, and perpetuates the injunction as to them ; and it is now ordered, that said injunction be dissolved as to said movables.

It is further ordered, that said judgment be amended by allowing the defendants’ seizing creditors the'sum of one hundred and fifty dollars ;

And that thus reformed and amended said judgment bo affirmed with costs.

On Rehearing.

The plaintiff complains that this Court erred in not recognizing her title to the movables given to her in payment, by her husband, and which were seized under the writ of the judgment creditor.

In support of that complaint her counsel calls our attention, for the first time, to the consideration, which he admits not to have urged before, that in the dation the movables were valued at a price totally distinct from that fixed for the interest in the land.

Verification establishes that, indeed, the movables which were not encumbered liad been valued at $1075, while the land interest was appraised at $4515.

A discrimination thus being legally possible, the dation is not an indivisible unit, and can well be severed.

In other respects the plaintiff acquiesces in the correctness of the opinion delivered.

Tt is, therefore, ordered, that our previous decree, so far as it reverses the judgment of the lower court maintaining the elation of the movables and perpetuates the injunction as to them, be set aside, and considered unwritten, and it is now ordered, that said judgment be affirmed, and that in other respects, our said decree remain undisturbed.