text:
    No. 7598.
    Wm. Van Wren vs. Hugh Flynn.
    Defendant sold furniture to plaintiff for a price paid partly in cash and partly in notes, and it was at the time agreed that, if the notes were not paid at maturity, defendant could retake the furniture.
    Held: that, notwithstanding non-payment of the notes, such agreement did not authorize defendant to enter the home of plaintiff in his absence, without his consent and without notice, and to take away the furniture.
    Under the particular circumstances of this caae, the'court refused to disturb a verdict for $750 — holding that the small value of the furniture did not affect the question — the unlawful entry of the pauper’s hovel and abstraction of his scanty possessions being an injury identical in character and magnitude with the like entry of a palace and despoiling it of its gorgeous apparel.
    APPEAL from the Sixth District Court for the Parish of Orleans. Iliglvtor, J.

      Ullis & milis and John McJEnery, for Plaintiff and Appellee :
    Where defendant claims his right to take the property by agreement, he should have returnc d • the part of the price paid and the notes, and should have demanded the furniture; and if refused, should have proceeded through the courts. Ho .one has a right to take the vindication of his supposed legal rights in his own hands, and a verdict of a jury awarding damages against one who does so will he favored rather than disturbed by-the court. 0. P. 1, 147; 29 An. 214, 223; 1 Rob. 140; R. G. C. 2315; 30 An. 92G, 929; 13 An. 102; 33 An. 393.

      Kennarcl, Hoioe & Prentiss, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff bought from defendant, a furniture dealer, a set of furniture and paid for it.

Subsequently, he bought from defendant another set of furniture, under an arrangement by which he returned a part of the first set, valued at $37.50, which defendaut agreed to take back and credit on the price of the second set, and for the balance of said price he furnished his promissory notes, payable at 30, 60 and 90 days.

Conflicting testimony is presented touching the existence and nature of a verbal agreement made between the parties at the time of the contract. We eliminate the contradictory statements of plaintiff and defendant, and accept that of the only other witness present at the time, who says that “ Wren agreed with Flynn that in case he, Wren, did not pay his notes when they became due, Flynn could retake the furniture again.”

Shortly before the maturity of the first note, on account of the illness of liis wife, plaintiff, under medical advice, took her to Tangipahoa Parish, on the Jackson Railroad. On leaving, he sent a messenger to defendant, informing him of the cause of his departure and stating that, upon his return, he would settle his bill; to which the defendant made no objection. Owing to continued ill-health of his wife and other sickness in his family, his absence was prolonged until nearly a month after the maturity of the last note.

In the meantime, the notes had all matured, and defendant had several times sent his collector to plaintiff’s house without finding him ; but it does not appear that he made any other effort to communicate with him or to notify him of his intention to retake the furniture, if not paid.

On the 27th of September, defendant went to plaintiff’s house with a wagon and several men ; entered the same, which was then occupied by plaintiff’s mother, sister, and sister-in-law; informed these ladies that he had come to take the furniture, and disregarding their statement that Wren’s return was expected and their request that he should wait until his .return, he caused the contents of the furniture to be taken out, and removed and carried away the same.

That same night defendant returned with his invalid wife and children, and found their sleeping apartments denuded of furniture, so that they were compelled, in order to find accommodation, to send off some members of his family to other quarters.

It is in evidence that plaintiff had provided himself with means to pay for the furniture and had returned with that purpose, according to the assurance which' he had conveyed to defendant when he left the city, and to which the latter had not objected.

No one appreciating the jealous care with which our law guards the sacredness of every man’s house and his lawful possession of property against invasion or disturbance, otherwise than by proceedings taken under the sanction and through the agency of the public justice, can question that, unless removed from its general principles by the effect of the agreement set up in defense, the acts which we have detailed constituted a gross outrage upon the rights and feelings of plaintiff, as a citizen and a man, for which courts of justice must either grant redress or sanction the personal exaction of satisfaction by violence. Thayer vs. Littlejohn, 1 Rob. 140.

The agreement established in this record cannot shield the conduct of defendant.' It does not purport, in terms, to confer upon the defendant the right to enter the house of plaintiff, in his absence, without his consent, and without notice, and to carry off its contents. An agreement conferring such extraordinary power would need to be so clearly worded and proven as to leave nothing to implication.

The grant of the simple right to retake his furniture, on non-payment of the price, cannot be construed to embrace such power.

It conferred, at most, a legal right upon defendant, which, like other rights, could be enforced only with consent of plaintiff or by legal process; and we doubt, under the evidence here, whether any court would have awarded possession to Flynn, without requiring antecedent tender or payment of that part of the price which had been paid.

This case is entirely different from that of Jencks vs. Home Sewing Machine Company, recently decided, where we rejected the claim of plaintiff, because, having consented to the retalcing by plaintiff, she 'vas present when he exercised the right and made no opposition.

We are not disposed to interfere with the allowance by the jury of $750 as damages. The discretion of juries in such matters is not to be interfered with, unless manifestly abused.

The argument that the slight value of the furniture involved justifies a reduction of damages, has no weight.

The unlawful invasion of the pauper’s hovel and abstraction of its scanty possessions, is an injury identical in character and magnitude with the like entry of a palace and the despoiling it of its gorgeous apparel.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J. Bermudez, C. J.

license: Public Domain

text:
    No. 8685.
    John H. Smith vs. Orleans Railroad Company et al.
    • Where an appeal is dismissed, on the ground of material deficiency or incompleteness of the transcript, the Court on an application for a rehearing is authorized to observe that the judgment appealed from not having been signed, the application for an appeal was premature and can maintain its previous ruling, for that additional reason. Rehearing refused.
    APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.

      Andrew J. Murphy, and F. W. Balcer, for Plaintiff and Appellee,

      Ohas. Lou,que, for Defendant aud Appellant.
   On Motion to Dismiss,

The opinion of the Court was delivered by

Todd, J.

Among the other grounds set forth in the motion for the dismissal of the appeal, we find the following:

That the transcript does not contain the motion and order of appeal of May 23d, 1882, and the original answer of defendants.

It appears that on the 13th of April, the defendant applied in'the court below for an.appeal from the judgment therein rendered, which application was refused.

Thereupon, a mandamus was applied for to this Court, to compel the said Judge to grant the appeal. The mandamus issued, and in due course was made peremptory. We must presume that the District Judge complied with this order, and granted the appeal, in the absence of any suggestion to the contrary.

But neither the order of appeal nor the original.answer of the defendants is in the record. And although there was sufficient .time, after the filing of the motion to dismiss the appeal, for the appellant to have corrected the record and supplied the omissions, yet no such application has been made, and no answer ever has been made on the brief of the appellee’s counsel on the motion to dismiss.

In the absence of these important documents, we cannot entertain the appeal, and that they are not in the record, must under the circumstances stated, be attributed to the fault of the appellant.

Appeal dismissed.

On Application for Rehearing.

Bermudez, C. J.

The defendant has failed to convince us that we have erred in dismissing the appeal in this case.

The transcript is deficient by the fault of the-appellant, in not containing the answer to the petition and the motion and order of appeal.

No doubt the appellant, in the face of the clerk’s certificate, had a right to suppose that the transcript was complete; but, after the warning given in the motion to dismiss, the appellant was bound to know of the omissions complained of, and should have had them accounted for, or supplied.

Whether the appellant knew or not that the motion to dismiss had been made, is immaterial. ' The motion was filed and posted, in the manner and during the time prescribed by the Rules of Court. No service or other notice was necessary. Knowledge was thus conveyed.

We cannot consider the certificate and affidavit annexed to the application for a rehearing. In such cases, the only question presented is: Has the Court erred in its ruling? The error, if any, cannot be established by documents not previously submitted and considered.

We deem ourselves authorized, under the exceptional features of this case, to say, that had we not dismissed the appeal, for the reasons stated in our opinion, we would have done so proprio motu, had we noticed the irregularity, on the ground that the judgment appealed from is inchoate, never having been signed by the District Judge, and, consequently, that the appeal was prematurely asked. L. D. 16. (2.)

The judgment was rendered on the verdict of the jury, for the amount found by them.

A motion for a new trial was next made. On the trial of that motion, the Court intimated that, unless the claim, verdict and judgment were reduced from two to one thousand dollars, it would grant a new trial.

The plaintiff thereupon moved to be permitted, and was allowed to enter the remittitur.

It does not appear that he ever made the remittitur, in furtherance of the permission granted.

If his motion to be permitted to do so, be considered as a remittitur, it does not appear that the Court acted upon it, or by doing so, that it reduced the judgment previously rendered, from two to one thousand dollars.

The original judgment for two thousand dollars is unsigned. It is followed, in the transcript, after three intersecting lines, by the motion to be permitted to enter the remittitur, which is headed by the word remittitur.

That motion, found in another part of the record, is also followed by the words: “Judgment signed April 10th, 1832.” Next comes the signature of the Judge.

The plaintiff, upon obtaining the authority to remit, should have formally entered the remittitur. Upon his doing so, the Judge should have amended his previous judgment by decreeing a recovery of one, instead of two thousand dollars. This was not done. The only judgment rendered has never been modified and remains unsigned.

The signature of the motion for permission to enter the remittitur, even in the form and manner in which it was made, is not the signature of the judgment contemplated by law. 30 An. 63; 24 An. 259.

It is not until after the judgment, modified or not, shall have been signed, that an appeal can be taken from it.

It is, therefore, manifest that the judgment, being unsigned, cannot be executed or appealed from, and that everything that was done subsequent to its rendition, was premature and nonavenu.

When this Court granted the mandamus mentioned in the original opinion, it did so on the theory that the judgment had been signed. The transcript now before us was not then submitted. That the judgment was signed, was, therefore, an assumption in error.

Rehearing refused.


author: Poché, J.

text:
    No. 8690.
    Wm. G. Kibbe vs. Kesiah Campbell.
    A possessor of the lands of another, who erects buildings or other works on such lands, is entitled to recover from the owuer of the soil the value of his materials and the price of workmanship, if the owner of the soil elects to keep the works. Until such election is made by the owner of the soil, the possessor remains the owner of the works, and owes no rent.
    This rule applies to lands which are the separate property of a married woman. Judgment affirmed.
    APPEAL from the Sixteenth District Court, Parish of Vermillion. Clegg, J.

      O’Bryan efi White, for Plaintiff and Appellee:
    "Where the wife, by selling the sanm, converts to her own use improvements placedonher plantation by a third person, who had occupied the place by permission of her husband, she becomes indebted to such third person for the cost of theimprovements. C. C. 508; 5 An. 135; 8 An. 512.
    The measure of her liability is the value of the materials furnished, and price of workman* ship paid by such third person: “without any regard to the greater or less value, which the soil may have acquired thereby'” C. C. 508; 16 An. 587-588.
    Improvements so placed on the wife’s separate property, belong to her as to any other owner of the soil, when she elects to assume ownership of tbe same. And the debt therefor is due by her, and not by the community. 29 An. 761; 5 An. 125; 8 An. 512; 14 An. 194; 2 An. 244.
    The prescription of ten years only applies to actions founded on a quasi contract. C. C. 3544 10 An. 395; 15 An. 143.
    Claims for rent are subj ect to the prescription of three years. C. C. 3538; 24 An. 73.
    Actions for trespass are prescribed by one year. C. C. 3536; 20 An. 323 $ 21 An. 492; 26 An. 511.

      Boht. ¡S. Perry, for Defendant and Appellant:
    The husband’s gratuitous disposition of a wife’s property is null. H 880, Ho. 7; 21 An. 216; 4 L. 484. One who administers merely cannot give. If the use or usufruct be community, the husband cannot dispose of it gratuitously. C. C. 2204; C. 3ST. 1422? Marcadé, Vol. 5, p. 514; Rogron Ex. Code Civile, p. 1036. If it be not community, he is only administrator. C. C. 2385, 2386 ; C- N. 1428 ; Marcadé, Vol, 5, p. 524, II. Also p. 522,1»
    If husband grants gratuitous use, and the former proposition is incorrect, the light granted is to be assimilated to usufruct, and no compensation can be claimed for improvements. C. C. 569, 594; 18 An. 269; 21 An. 216; C. H. 599. And there is no cause of action.
    A debt created by the husband administering, for improvements on the wife’s land, the community existing, is a community debt — tbe wife is, in no sense, bound towards tbe community until she resumes the administration and retaius the improvements as she may. Then she becomes debtor to the community for one-balf the increased value. The community alone is the debtor to the third person for the cost of improvements. 8 R. 18?, 7; 12 R. 385, 9 ; 6 An. 635 ; C. C. 2408, 2377 ; 16 An. 145; 13 An. 546 ; 18 An. 105, 588 ; 20 An 206, 9 ; C. C. 2403 ; 29 An. 751; 31 An. 794.
    The case is different when, under C. C. 508, a person goes on land of another bona fide and with his own materials improve, from that where the materials used are taken from the
    An action to recover for use of property on a quantum meruit, or quasi contract, is prescribed by ten not three years. C. C. 3538, does not apply, because this is not “ for arrearages of rent charges, etc., or for the hiio of movables or immovables.” Rent charge has a speciflo meaning. C. C. 2779, 2780, 2787, 2788, 2792 ; 0 N. S. 42S ; 1 An. 209. The difference between rent of land and lease is that one is a perpetuity, the other is not. C. C- 2780. The contract of lease or of hire is defined by C. C. 2669, as a “ Synallagmatic Contract, etc.” See C. C. 2670, 2745, 2746, etseq; as to contract of hire. See aleo C. C. 2293, 2294, 3544 ; 5 An. 295; 10 An. 395; 32 An. 1091. The 24 An. 73 ie obiter.

   The opinion of the Court was delivered by

Poché, J.

This litigation grows out of the following facts :

In the year 1871, plaintiff entered on and took possession of a plantation, the separate property of the defendant, then a married woman, and cultivated the same until August, 1877.

He went on the place with the permission of defendant’s husband, who was her agent, and as such administered her separate property; and who made an agreement under which plaintiff was to purchase the jdace at some future time, at a stipulated price. When plaintiff’s possession began, the property was not improved, and was not rentable; and during his occupancy of the same, he built on it a small sugar house, other buildings, and made other useful improvements which he alleges to have cost him $2296. The object of this suit is to recover that amount from the defendant, who sold the property on the 24th of August, 1877, to other parties for the sum of $6560, out of which sum $1000 were paid over, with her consent, to plaintiff, as the estimated value of his then growing crop of sugar cane.

Defendant first excepted, that plaintiff’s petition disclosed no cause of action, and her exception being overruled, she pleaded in reconvention the rent of the place, for over five years, at the rate of $500 per annum, praying in the alternative to offset the value of the improvements by the rent, and she further reconvened for the sum of $1644.50, as the alleged value of timber and other materials taken from the place, and appropriated by plaintiff. The District Court allowed to plaintiff, as the cost of his improvements, the sum of $1935, and allowed to defendant, on her reconventional demand for rent, the sum of $1295-Defendant appeals, and plaintiff moves for an amendment, so as to recover the full amount of his claim and to defeat defendant's claim in reconvention. Between the date of filing defendant’s exception and the trial thereof, plaintiff filed an amended petition, alleging more specifically than was done in his original petition, that the plantation was defendant’s separate property. The Judge did not. err in considering, and giving effect to the amended' petition, which appears to have been duly served on the defendant.

Plaintiff’s right of action arises from the following provisions of Art. 508 of our Civil Code :

“When plantations, constructions and works have been made by a third person, and with such person’s own materials, the owner of the soil has a right to keep them, or to compel this person to take away or demolish the same.” * *
“ If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby.” * *

The text of this Article, has received frequent judicial interpretation, and is now well understood to mean that the possessor of the lands of another is entitled to be reimbursed the actual cost of such constructions, or to remove the same, subject to the option of the owner of the soil.

In this case, it appears'from pleadings that plaintiff was a possessor in good faith, and it follows that in selling the land with all the buildings, fences and other improvements thereunto situated, -without excepting the constructions made thereon by the plaintiff, the defendant must be held to have elected the exercise of her legal right to keep the works, and hence her obligation to reimburse the owner for the cost of the same. 2 An. 376, Stanbrough vs. Barnes; 11 R. 225, Miller vs. Merchant; 2 An. 339, Womack vs. Womack.

We therefore conclude, that plaintiff "s petition does disclose a cause or right of action, and that defendant’s exception was properly overruled.

On the Merits.

The evidence substantially supports the statement of facts contained in the beginning of this opinion, and justifies that part of the judgment which was rendered in favor of plaintiff.

There is no force in the position assumed by the defendant in urging that she cannot be held responsible for the value of improvements made to her separate property during the existence of the community.

The test of her responsibility must be found in her action in electing ¿o keep the works made on her separate property, by a third person, during the latter’s possession.

Her husband’s authority to plaintiff to take possession of the land, is invoked for the sole purpose of showing possession in good faith, but not under a contract of lease. We know of no law which authorizes a married woman to enrich herself at the expense of another. 29 An. 750, Jordan & Co. vs. Anderson.

Nor can plaintiff be concluded by his failure to claim the value or reimbursement of his works at the time of the sale in 1877.

He was then reimbursed for the value of his growing crop, and lie explains, in his testimony, the reasons of his silence on the subject of his improvements.

If correct, defendant’s argument would estop her from claiming her rent; for she actually paid $1000 to plaintiff, without even mentioning the subject of rent.

And in that connection, we think that the District Judge erred in recognizing defendant’s reconventional demand for rent.

The record shows that at the time of plaintiff’s occupation of the land, the property could not be rented, and was occupied by a party free of other charge than the care and custody of the property.

•It further appears, that the rental value of the plantation, between the years 1873 and 1877, was due and attributable exclusively to the sugar house, out houses, fences, ditches, seed cane and other improvements placed on the property by plaintiff.

Under the plain terms of the Article of the Code, these works remained his property until the ownership of the same was changed by the act of the defendant, in the exercise of her legal option, to keep them or to cause their renewal. As this act was performed by the defendant only at the time of her sale, the rvorks remained the undisputed property of the plaintiff, and hence, he cannot be held to jray rent for a tract of land to which his labor and disbursements had contributed its only rental value. In the case of Baldwin vs. Union Insurance Company, 2 Robinson, 137, we find the following language predicated on a kindred issue :

“ Our law has so far modified the effects of accession in such cases, as to give to the owner of the soil only the alternative of having the buildings removed at the cost of the person who erected them, or of keeping them as his own, on paying to the owner of the materials their value and the price of workmanship.
Until this election be made, the works, although subject to this right of acquisition given to the owner of the soil continue to belong to, and are at the risk of the person who made them.” Fernandez vs. Soulié, 28 An. 31. ^

We have given due consideration to defendant’s argument, that some of the materials used in the works were from timber taken and growing on the place. But we find, on the other hand, that in his statement of expenses, plaintiff makes due allowance for the timber and other materials belonging to the place and thus used by him ; and we think that these matters are honestly and properly adjusted by him.

We are constrained to reject defendant’s reconventional demand for rent. 16 La. An. 243, D’Armand vs. Pullin.

The evidence does not support her demand for cord wood and other items of property alleged to have been taken from the place and sold by plaintiff.

The judgment of the lower court is therefore amended, in so far as it allows rent to the defendant in the sum of $1295, which claim must be denied, and as thus amended, said judgment is affirmed, atdefendant’s costs in both Courts.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 7738.
    Mrs. Lise Boisblanc, Widow, etc. vs. The Louisiana Equitable Life Insurance Company.
    Where a prima fade case is made out, and the Insurance Company has set up breach of warranty and intemperance, the burden rests upon it to make out the defense. Where it fails in that regard, the beneficiary will recover. Judgment affirmed.
    A PPEAL from the Sixth Bightor, J. District Court for the Parihli of Orleans.

      Jas. Legendre, for Plaintiff and Appellee:
    1. In a suit to recover on a policy of insurance, the burden of proof in avoidance of the policy is on defendant. If defendant fails to prove the matters set up in defense, plaintiff will recover. Campbell vs. N\ Eng. Mut. Life Ins. Co., 98 Mass. 381; Miller vs. Mut. Benefit Life Ins. Co., 31st Iowa, 210; 1 Dillon Rep. 403; 31 Mo. 725; 2 O. Rep. 379.
    2. An affirmative warranty, if true when made, cannot he affected by a change in the conduct of the insured, subsequent to issuance of policy; when the warranty or representation was, that the insured was sober, subsequent bad habits constitute no bar to the recovery < Reichardvs. Manhattan Life Ins. Co., 3L Mo. 518; Bliss, page 132-69; 59 39T. York, 570; 4 Barlow Rep. 462.
    3. "When the insured is alleged to have died from the use of intoxicating drinks, it must he proved that intemperance was the sole and proximate cause of his death. Bliss on Insuiance, page 401; May on Iusurance, page 330; Miller vs. Mutual Benefit Life Insurance Co., 31 Iowa, 210.
    4. Fraud is never presumed, but must be proved with, legal certainty. 18An.l23; 24An.299.
    5. On questions of facts, the decision of the lower court is entitled to great weight.

      Breaux & Hall, for Defendant and Appellant:
    Facts stated in application for a policy of life insurance, forming part of the contract, warranted to be true, must be stiictly tine; and concealments, as regards health or habits, annul the policy, whttber the error of statement, or concealment, be intentional or not. May on Insurance, p. 161, § 15C.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff sues as beneficiary of the insurance effected by the defendant Company on the life of her husband, who died while it was in force. The defense is simply breach of warranty, implying intemperance.

From a judgment in favor of plaintiff this appeal is taken.

Aprima facie case having been made out, the burden of establishing the special defense, rested upon the defendant.

We have attentively read the evidence in the case. Admitting that it establishes that the insured indulged in excessive drinking, it by no means proves that he did so to excess. It surely does not show that the insured, prior to and at the time of his application, and of his answers to interrogatories propounded, was addicted to the use of intoxicating liquors to a greater extent than he had stated, and so as to impair his health materially, and to cause his death.

The District Judge, who heard and saw the witnesses, came to the same conclusion. We cannot overturn his appreciations.

The judgment appealed from is affirmed, with costs.

Mr. Justice Fenner recuses himself, having been of counsel.


author: Todd, J.

text:
    No. 8348.
    Succession of J. L. Sarrazin.
    Whore the heirs of an intestate have taken possession of his estate, the major heirs accepting purely and simply, and the minor heirs represented by their tutrix, an administration of the succession will not be ordered at the instance of a party who alleges that his wife is a creditor of the succession, where it is shown that'the debt claimed, if ever due, was demandable for over twenty years. Judgment reversed.
    APPEAL from the Civil District Court, for the Parish of Orleans. Houston, J.

      H. H. Chrétien and Chas. If. Claiborne, for the Opponents and Appellants.

      H. H. Walsh, for the Appellees.
   The opinion of the Court was delivered by

Todd, J.

This case presents a contest over an application for the appointment of an administrator to the succession of J. L. Sarrazin, under the following state of facts:

J. L, Sarrazin died on the Ilth of January, 1879, intestate, leaving a widow and eleven children, four of whom are minors.

An inventory was taken in June, 1880, and the widow qualified as tutrix of the minor heirs.

On the 31st of July following, suit was instituted by the major heirs against the tutrix for a partition of the estate, and on January 18thy 1881, a judgment ordering the partition was rendered.

On the22d of December, previous to the rendition of this judgment, Henry de Villeneuve applied to be appointed administrator of the succession, basing bis application on the fact alleged, that Ms wife was a creditor of the succession, charging that Sarrazin was indebted to her, on account of his administration of the succession of her mother, Marie Finance, the first wife of said Sarrazin.

To this application the heirs of Sarrazin filed an opposition on the 19th January, 1881, on the following grounds :

1. It was denied that the wife of the said applicant was a creditor of the succession, or that there were any debts owing by it.

2. It was averred that there was no necessity for an administration.

3. That the heirs of Sarrazin had accepted the succession and were in possession.

4. That a partition suit was pending, and had matured to j udgment.

5. That de Villeneuve had no right to the administration.

6. That if the court appointed an administrator, one of the major heirs should be appointed, and Jules Sarrazin, one of these heirs, was designated for the appointment.

There was judgment dismissing the application of de Villeneuve, and appointing Jules Sarrazin administrator, upon his complying with the requisites of the law.

From this judgment, so far as it decreed an administration of the estate, the heirs and opponents appealed. *

1st. The first question presented is, whether the wife of de Villeneuve, the applicant for the administration, is a creditor of the succession.

The record shows:

That Marie Madeleine Finance, the first wife of Sarrazin, died in 1849. Previous to her marriage with Sarrazin, she was the wife of Edmond Krebbs, of which firstmarriage was born Nathalie Krebbs, now the wife of de Villeneuve, the applicant for administration. Sarrazin was appointed administrator of the succession of his deceased wife, and filed his account, showing that there was due to each of her children, $482.34.

The tutor of Nathalie Krebbs, who was then a minor, gave a receipt for the sum named to Sarrazin, administrator, stating, in the body of the receipt, that this amount was coming to her from the succession of her mother, Marie Finance. The date of this receipt is the 26th of June, 1850. Nathalie Krebbs was born on the 6th of January, 1840, and consequently, attained her majority on the 6th of January, 1861.

The x>rescription of 2, 3, 4, 5, 10, 20 and 30 years, is pleaded by the heirs against the claim now preferred against the succession.

The contention is, -that this account of administration, by Sarrazin, was incorrect. That the entire sum accounted for was received by Sarrazin from his wife, and was her separate fund, and that there was an error in the distribution of the same. That the whole of it was owing to Mrs. de Yilleneuve, as the sole legitimate child of her mother. That the other children, with whom the money, was shared, were the fruit of an illicit connection between the said Sarrazin and Marie Finance, who had abandoned her husband, Edmond Krebbs, the father of Mrs. de Villeneuve.

It is further contended, that Mrs. de Yilleneuve did not become acquainted with her rights to the succession, and the wrongful distribution of her mother’s estate, till a short time previous to the institution of the proceedings in this case ; and it is argued, from this fact, that prescription was suspended until the discovery of the real facts was made.

We hold that, whilst it is not essential that a party claiming an administration, by right of being a creditor, should make full proof of his claim, that is, as complete proof of it as if he were suing the succession for the debt, still, a court, before encumbering a succession with an administration, with its attendant costs and delays, should, atleast, require a prima facie case of indebtedness to be made out.

In the instant case, if this debt was ever owing by J. L. Sarrazin to Mrs. de Villeneuve, conceding that a husband is entitled to be appointed administrator of a succession on account of a debt due by such succession to his wife, still we find that more than thirty years has elapsed between the date of this application and the date that this debt became demandable. And we find, also, a receiptin the record from the tutor, and at the time legal representative of Mrs. de Villeneuve, acknowledging the payment by Sarrazin of all that he was owing her on account of his administration of the estate of her mother, on which account the present claim is preferred. Against this claim we find, also, that prescription has been pleaded, as stated.

While we do not decide that the succession of Sarrazin is not indebted to Mrs. Yilleneuve, and do not determine whether or not the plea, of prescription should prevail against the claim, preferring that these issues should be settled in another form of controversy and under different pleadings, yet we conclude, under all the circumstances of the case, that the applicant is not entitled to demand an administration of this succession.

2d. Among the circumstances which have induced the conclusion stated, besides the character of the proof administered in support of the claim, is the fact that the heirs of age have accepted the succession purely and simply, have sued for the partition of it, and the entire estate is in possession of the major and minor heirs. That the minor heirs are represented by their tutrix, and no obstacle whatever exists to tlie recovery of this claim of Mrs. de Villene.uve in a suit against tlie' heirs of age and the tutrix of the minor heirs. They, together, represent the deceased, and can stand in judgment, as has been frequently decided. See case of Soye vs. Price, 30 An. 93, and authorities there cited.

We find no sufficient reason why this succession should he placed under administration.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that the opposition of the opponents be sustained, and tbe demand for an administration of tlie succession of J. L. Sarrazin, be rejected, at the costs of the applicant, Henry de Villeneuve, in both Courts.


author: Fenner, J.

text:
    No. 7850.
    Mary C. Thornhill vs. The State National Bank.
    1. Where a judgment recites, upon its face, tlie consent of the defendant “ given in open • court,” citation and default are unnecessary; the consent so given need not be in writing; and the fact and sufficiency of the consent will be presumed, unless the contrary be made to appear. 29 An. 557; 11 An. 280.
    2. A married woman, with tbe authority of her husband, has power to make a compromise. 26 An. 289.
    3. A married woman, authorized by her husband, may mortgage her separate property for her separate debt, without prior examination by a Judge and compliance with other requisites of Üev. Stats., Secs. 2432 ct seq¡ 15 An. 54.
    4. Where the effect of a compromise and of judicial proceedings in execution thereof, consented by a married woman, authorized by her husbaud, is merely to subject her separate property to the payment of her separate debt, she will be held bound thereby.
    5. Where a married woman, after being examined by the Judge apart from her husband, admits in open court that the claim sued ou enured to her separate benefit, she will not be permitted thereafter to contradict such admission as a ground for attacking the judgment.
    6. Where a compromise and judgment, such as above indicated, have been voluntarily-executed by the woman, after her widowhood, they will be thereby conclusively ratified.
    APPEAL from tlie Fourth District Court for the Parish of Orleans. Houston, J.

      H. B. Magrnder and li\ It. Biehardson, for Plaintiff and Appellant:
    1.A judgment without citatiou is an absolute nullity, and any one having the least interest may annul a judgment for want of citation. 1 If. S. p. 9 5 2 L. 169 5 30 An. 147; C. P. 606.
    2.Courts will presume nothing with reference to a party being cited. Knowledge of the suit on the part of the defendant, no matter how clearly brought home, will not suffice if this formality lias not been complied with. Proof of citation is not a matter en pais. 2 L. 169 ; 8. hi. S. 145 ; 21 An. 27; 5 ST. S. 439.
    3.Parol testimony cannot be admitted to supply any defect or omission in a suit after final judgment, especially can it not be admitted to show that essential prerequisites of a valid judgment were complied with, but not made matters of record. Such coirections could not be made even on a new trial.

      4. A married woman is not estopped by a confession of judgment from attacking it, when the debt for which it was confessed did not enure lo her separate benefit or that of her separate estate. 15 An. G2S; 23 An. 325 ; 14 An. 169 ; 28 An. 840.
    5. To recover ágainst a manied woman, it must ho alleged and shown offiimatively that the debt enured to her separate benefit. 20 An. 229 ; 24 An. 95; 9 An. 268.
    6. A mortgage on paraphernal property, for the benefit of the husband or a firm of which ho is a member, whether plaoed there by the wife herself, or by a third person claiming to he the owner of the property, cannot he ratified. The law which foibids such encumbrance of paraphernalia is prohibitory. 15 An. 569; 14 An. 169; 30 An. 813 j 26 An. 737 ; 6 B. 331.
    7. The intent to ratify an invalid act must he olear, and leave no doubt. Especially in this case when the ratification is tacit. C. C. 2272; 23 An. 538 ; 13 L. 176.
    8. If it is a condition of an act, called a compromise, that one party shall purchase from the other a plantation, the purohase is not a ratification, if the title is void, unless the purchaser knew it at the time of signing the compromise.

      J. MoOoimell, for Defendant and Appellee:
    1. A married woman, aided and assisted by her husband, can, without judicial authorization, make a valid compromise for the purpose of preventing or putting an end to a law suit. C- 0. 3071, 3072, 3101, 1786 ; Maria L. Baron vs Sollibellos, 26 An. 289.
    2. Where suoli transaction or compromise has been.made by a married woman, it has the force of the thing adjudged, and “ she cannot then he listened to when saying that the debt compromised was the debt of her husband.” Maria 1». Baron vs. Soliibelloa, 26 An. 289; O. C. 3078.
    3. Unauthorized contracts made by married women, may be made valid after the marriage is dissolved by express or implied ratification. O. C 1786.
    The voluntary execution of the obligation is sufficient, if made subsequently to the period at which the obligation could have been validly confirmed or ratified. O. C. 2272 ; see also, C. P. 612.

      A contract made by a femme couoertc is ratified by a partial payment after she becomes a femme sole. Tucker vs. Lisle, 4 La. 328; see also, 7 La. 76, and 2 Bob. 2.
    4. A promise to pay a debt due by a deceased husband, made by the wife subsequently to his death, when the marital authority had ceased, is binding on the wife. Succession of Gí-uidiy, 4 An. 483.

      5'. A consent to judgment being rendered need not he in writing; it may be given verbally and in open court. “ And where a decree of court is rendered ‘ by leason of the consent of parties plaintiff and defendant,’it does not matter whether the consent was given in writing or verbally, it will be presumed, until the contrary is made to appear to have been given in such a way as to justify the rleoiee.” Woodward vs. Lurty. 11 An 280, 2b2.
    6. ^Neither citation nor default is necessary to the validity of a judgment based on the confession of defendant, Marbavy & Crossley vs. Pace 29 An. 557; see also, 5 Bob. 447, and 9 La. 411.
   The opinion of the Court was delivered by

Fenner, J.

The ‘'Acquasco Plantation,” situated in Tensas Parish, from the year 1844 had belonged jointly to Mrs. G-. 0. Covington and her children, the latter, as heirs of their father, Levin Covington, who died in 1844. The mother had, however, always administered and cultivated it.

Iu 1866, Mrs. Covington, being indebted to her factors, R. W. Estlin & Co., executed a mortgage on the plantation in favor of them, or any future holders, to secure the payment of twenty promissory notes, drawn by lierself, to her own order and by her endorsed, aggregating the sum of $23,299.33.

Five of these notes were paid, and the defendant Bank became, in due course of business, holders of the remaining fifteen, amounting in principal to $18,299.35, with interest at six per cent, from January 1st, 1866.

On the Ilth November, 1869, the plaintiff and her sister, Mrs. Sue Covington Buckner, co-owners, with their mother, of the plantation, addressed a communication to the Bank, in which they referred to the above mortgage as having been consented by their mother without consultation with them, and stated that their mother was only owner of part of the plantation, and that they understood that a large portion of the debt, for which the mortgage was given, had not enured to their benefit; and they then proposed, “ for the sake of a compromise and amicable adjustment of the debt,” to recognize the validity of the mortgage on one-lialf of the plantation. This communication led to negotiations between the parties for a settlement, which resulted finally in a notarial act of compromise, signed by the Bank and other parties interested in the notes, on the one hand, and by Mrs. Covington, by the plaintiff, and by Mrs. Buckner, and by the husbands of the two last named ladies, to authorize them. This act recites the execution of the mortgage by Mrs. Covington alone; states the ownership of the property by her and her children; admits “ that the consideration of the mortgage enured to the benefit of said plantation, * * * and, therefore, is a just debt upon the same, and due by the owners,” and culminates in an agreement to the effect that suit should be brought and judgment rendered in favor of the Bank, for its full claim, and with recognition of the mortgage; that execution should issue histanter, under which the property should be sold for cash, and bought in “by said mortgagor and said co-heirs, or any one they may designate;” and the mortgagees agreed to reduce their claim to the principal alone, abandoning the accrued, interest, and further, to extend the time of payment to one, two and three years from the date of the act, in equal instalments and without interest.

In execution of this settlement, suit was instituted by the Bank against Mrs. Covington, and against the plaintiff and Mrs. Buckner and their husbands to authorize them. In the petition, it was alleged that the mortgage was executed by Mrs. Covington alone; that the other defendants were co-owners of the plantation, but that the debt enured to the benefit of all the parties, and that they all had knowingly approved and ratified the mortgage.

An answer was filed, signed by plaintiff and Mrs. Buckner and their husbands, accepting service of petition, waiving citation, admitting the truth and justice of the claim, and consenting to the judgment and recognition of the mortgage. In addition thereto, the two married women -were examined by the Judge, apart from their husbands, and their consent was given in ojien court, and entered in the note of evidence in the cause.

All the parties attended in open court, and judgment was rendered, as follows:

“ Considering the law and the evidence, and considering the consent of the several defendants, given in open court, that judgment should be rendered as prayed for j and the court, having examined in chambers said defendants, Mrs. M. C. Thornhill and Mrs. Buckner, separate and apart from their husbands, touching the objects for which the mortgage was contracted, and being satisfied that same was not for said husband’s debts, etc., but did enure to the benefit of the separate property of said defendants, * * * it is ordered, adjudged, etc.,’’proceeding to give personal judgment against Mrs. Covington, and to recognize the mortgage, and order the sale of the property for cash, to pay the debt.

Under writ of ft. fa., the property was sold and was adjudicated to the Bank. Shortly thereafter, the Bank conveyed the property to the plaintiff, Mrs. Thornhill, who had then become a femme sole, the act itself containing clear, internal evidence that the conveyance was made in execution of the compromise, and upon the terms therein agreed upon.

Mrs. Thornhill entered into possession under this title, and so remained for several years, without disputing the rights of the Bank, making one partial payment on the price, and excusing her defaults in payment on grounds of poor crops, losses by overflow, etc.

Finally, in 1875, discovering that the Bank had neglected to record its deed to her in the mortgage office, without notice to the Bank, she sold and delivered the property to one Moreland for $20,000, taking his notes in payment.

On learning this the Bank was driven to a suit to rescind the sale for breach of the resolutory condition of non-payment of the price.

Thereafter, plaintiff instituted the present suit, the object of which is to annul the judgment which was rendered, as we have seen, in execution of the compromise, and under which the property was sold to the-Bank.

The grounds of nullity urged are :

1. That the judgment was rendered against Mrs. G. C. Covington, without citation.

2. That the mortgage enforced by said judgment was null, because it was a mortgage on the property of others than the mortgagor.

3. That, being absolutely null, the mortgage was not susceptible of implied, ratification, and that sucli ratification, if implied from the compromise and judicial proceedings herein, would have the effect of encumbering paraphernal property, without previous authority of the Judge and compliance with the formalities prescribed by law.

4. That the Bank, having derived the mortgage notes from R. W. Estlin & Co., of W’hich firm Henry Thornhill, the husband of plaintiff, was a member, said firm and said Thornhill, in solido, were liable to the Bank on said notes, and that the proceedings had the effect of mortgaging the paraphernal property for a debt for which he was liable, which could not be legally done.

I.

The first ground has no foundation. The judgment shows upon its face the consent of Mrs. Covington, w given in open court, that judgment should be rendered as prayed for.” Such voluntary appearance cures the want of citation and renders default unnecessary. Marbury vs. Crossley, 29 An. 557.

The consent, being given in open court, was sufficient to sustain the judgment, whether given verbally or in writing ; and when the judgment recites that consent was so given, the fact of the consent and of its sufficiency will be presumed, unless the contrary be made to appear. Woodward vs. Lurty, 11 An. 280.

In absence of proof to contradict the recital of the judgment, it could not be assailed on this ground; but here positive proof is administered that Mrs. Covington did so appear and so consent, which is uncontradicted.

II.

The other grounds may be considered in globo.

They are all concluded, in our judgment, by the compromise and judicial proceedings in execution-tliereof; and by the acts of plaintiff herself, after the death of her husband, when her capacity was unlimited.

At the time when the compromise was entered into, the Bank, and other parties thereto were holders of the mortgage notes, transferred without the endorsement of R. W. Estlin & Co., and on which said firm is not shown to have been, in any'manner, liable to them. This obviates all objections based upon the charge that the debt, settled and secured by the compromise and judicial proceedings, was a debt of plaintiff’s husband.

If the debt evidenced by said notes enured to the benefit of plaintiff and of her separate property, it is clear that she and her separate property were liable therefor. Dickerman vs. Reagan, 2 An. 440; 5 An. 126; 6 An. 121 : 8 An. 512 : 14 An.’194.

She would have had the right, at that time, with the authorization of her husband, to mortgage her separate property for the security of such a debt. The pretension that prior examination by the Judge, and compliance with other formalities prescribed by the Act of 1850, now Rev. Stat. Secs. 2432, et seq., are essential to the validity of such a mortgage, is groundless. It was long since settled that this legislation did not impair the previous provisions of law in regard to the contracts of married women, but only furnished a mode by which their contracts might be made to furnish full proof against them. Rice vs. Alexander, 15 An. 54.

A married woman may sell her paraphernal property, with the authorization of her husband, and may undoubtedly mortgage it for her separate debt, with like authority, subject only to the condition that the party taking such mortgage incurs the responsibility of establishing that it did enure to her separate benefit.

The authority of a married woman to make a compromise, with tire authority of her husband, has been judicially determined. Barron vs. Sollibellos, 26 An. 289.

The effect of the compromise, and of the judicial proceedings based thereon, was only to effect that which the plaintiff would have had the unquestioned right to do, assuming that the debt was her separate debt, viz: to subject her separate property to the payment thereof.

Can the plaintiff be heard to deny that the debt did enure to her separate benefit 1 We think not. She was a party to the suit in which the judgment assailed was rendered, and she judicially confessed this fact.

The cases suggesting that a married woman is not estopped from attacking her own judicial confession are based entirely upon the supposition that such confession may have been induced by marital influence. But, in the present case, the Judge, before acting on her confession, examined her, separate and apart from her husband, about the nature of the debt, and satisfied himself touching the same and touching the freedom of her action, and her admissions made in open court form part of the evidence. /

Judicial proceedings against married women would be a farce if, under such circumstances, a married woman could go behind her own judicial confessions and admissions. Aubie vs. Gill, 2 An. 343; Dickerman vs. Reagan, 2 An. 440; McComas vs. Green, 6 An. 121.

But the voluntary acts of plaintiff after the death of her husband, in execution of the compromise, are a conclusive ratification thereof, and make it absolutely binding upon her.

Nothing could be clearer, from a mere inspection of the compromise and the act of sale to plaintiff, than that tlie latter was made in execution of the former.

By accepting title, she voluntarily executed the compromise and forever estopped herself from questioning its validity.

The evidence satisfies us that this ratification was made with full knowledge of every fact essential to an understanding of the entire transaction; and that the present assault was prompted, not by the discovery of any new fact affecting the same, but simply by the discovery that the Bank had neglected to record its deed in the mortgage office, and by tlie opportunity thus afforded, to sell the property, free from the Bank’s mortgage and lien.

Judgment affirmed, at appellant’s cost.


author: Bekmudwz, C. J.

text:
    No. 8650.
    The State of Louisiana ex rel. Chism & Boyd vs. The Judge of the Twenty-Sixth District Court for the Parish of St. Charles.
    Where a suit is on unconditional obligations to pay specific sums of money, and the defendant does not bring himself within cither of the exceptions provided by C. P. 494, the District Judge has no right to order a trial by jury, and must pass upon the case itself.
    A mandamus lies to compel the trial of a case, where the Judge has illegally refused to go into the merits of the action upon an erroneous construction of some question of practice preliminary to the whole case. Mandamus peremptory.
    APPLICATION for a Mandamus.

      Bermli ék Legendre} for tlie Relators:
    Kelators, holders of the two promissory notes made by Joseph Deynoodt, whereby the latter promises to pay, absolutely and unconditionally, a certaiu sum of money at a time specified therein. Story, Promissory Hotes, §1.
    Suit Ho. 120 is based exclusively on those notes and on unconditional obligations to pay specific sums of money, and “ shall be tried without a jury,” O. P. 494, and by the Judge alone.
    The original and supplemental answers in Ho. 120 are “ sans ” allegation — " sans ” affidavit, to entitle the maker of those notes and obligations to a trial by jury. C. P. 494.
    The sworn responses to the interrogatories on facts and articles cannot supply the fatal omidbion. Besides, those responses speak only of remission and are not within any one of the exceptions of C. P. 494.
    Suit Ho. 120 is similar to that of Lanata vs. Bayhi, 31 An. p. 229, from which we give extracts at pp. 10*11 of our brief.

      Jas. D. Augustin, for the Respondent:
    Mandamus cannot issue when there is adequate remedy by appeal; nor in matters of discretion of the Judge a quo; uor to force him to decide an issue in a particular way, the remedy is by appeal. 2 An., 779 ; 3 An. 716; 8 An. 92; 9 An. 250 ¡ 10 An. 420; 15 X. 521; 13 An. 481-483} 17 An. 288-328,- 23 An. 766 j 28 An. 889.
   The opinion of the Court was delivered by

Bekmudwz, C. J.

This is an application for a mandamus to compel a District Judge to determine a suit brought before the court over which he presides, and referred by him, for trial, to a,jury.

. The suit is upon promissory notes, secured by a pledge of certain property.

The defense was a general denial. The defendant further alleged that the obligations sued on are not unconditional, that -if an indebtedness ever existed, it was remitted and extinguished by the plaintiffs. - On an ex parte representation that the case offers a. great many issues of fact that appropriately pertain to the province of a jury, the court ordered that a trial by jury be granted.

The present proceeding has for its object to require the District Judge to try the case himself, the suit being one on unconditional obligations to pay specific sums of money, and the defendant not having brought himself within any of the exceptions on which the case can be removed from the court’s docket to that of the jury.

Our right to revise the action of the District Judge in the present proceeding cannot be questioned.

A mandamus is often sought and obtained to set in motion a judicial officer who is unwilling to proceed with the decision of a cause instituted before his court, the plaintiff therein having an absolute right to a determination of his action in the form and manner prescribed by law. 32 An. 542, 597, 774 ; 33 An. 1070) 1096,1351; High on Ex. Rem., §250.

“A distinction is recognized between cases where it is sought by mandamus to control the decision of the inferior court, on the merits of a cause, and cases where it has refused to go into the merits of the action, upon an erroneous construction of some question of law or practice preliminary to the whole case.” High on Ex. Rem., § 151.

The authorities, to which the defendant has called our-attention, are. cases in which the rulings were made at times when the jurisdiction ■of this Court was appellate only. In the exercise of the powers conferred upon it by Article 90 of the present Constitution, this Court feels justified in interfering in the present ease, in which, otherwise, the ruling made might prove a denial of justice. Its appealable character is of no significance.

We think that the District Judge has erroneously determined a question of practice preliminary to the trial of the whole case.

The notes sued upon aro in the stereotyped form in which promissory notes are habitually made. They are, unquestionably, on their face, unconditional obligations to pay specific sums of money. The suit is via ordinaria. The act of pledge, with which the notes are identified by the notary’s parapb, was not intended to change their character, and did not do so. The question of the quantum of liability of the defendant is purely a matter of evidence.

Tlie defendant does not pretend that his signature to the notes is not genuine, or that he expects to prove that the same had been obtained through fraud or error, or want of consideration; neither does he set up a plea of compensation or reconvention. His defense, whatever it be, is unsworn. His oath to answers to interrogatories does not form part of the pleadings and does not cure the omission.

The spirit and letter of the law on this subject are too plain to be misunderstood and misapplied. Under the formal behest of the law, cases of this description '* shall he tried without a jury,” unless the defendant shall make one of the averments stated, verified by his oath. C. P. 494.

It may be that, on the trial of their case, the jury might do the plaintiffs full justice. It is possible, also, that the verdict may go against them for the whole or for part of their demand. It is not improbable that the jury may not agree and, therefore, that such mistrial may postpone injuriously a decision of his case. But those hypotheses have nothing to do in this case.

It is enough that the law provides that such a suit on unconditional obligations to pay specific sums of money shall be tried without a jury, and that the defendant has not brought himself within any of the exceptions in which he might have had it been removed from the Judge’s docket to that of the jury.

The defendant Judge exercised no legal discretion in ordering the trial of the case in a manner unauthorized or forbidden by law. In the absence of a proper technical defense, it was his bounden and unavoidable duty to try the case himself.

The Relators are of right entitled to the relief sought.

It is, therefore, ordered and decreed, that the alternative mandamus herein, issued be made peremptory, as prayed for.


author: Poci-ié, J.

text:
    No. 7839.
    Mrs. Annie Huyghe vs. Henry Brinkman.
    A judgment of ejectment of a party as tenant "by a Justice Court 'will not sustain the exception of res judicata in an action by tbe party ejected, for possession as owner of tbe same premises.
    APPEAL from the Fifth District Court for the Parish of Orleans. Sogers, J.

      J. 0. Nixon, Jr., for Plaintiff and Appellant.

      Bayne & Bendyre, for Defendant and Appellee.
   The opinion of the Court was delivered by

Poci-ié, J.

Plaintiff appeals from a judgment maintaining an exception of res judicata to her possessory action, as owner of an immovable'property, from which she had been unlawfully evicted. Defendant’s plea is predicated on a judgment by a justice court, in his suit for the expulsion of the plaintiff in this case from the same tract of land, under the allegation that she was his tenant.

It is elementary, that to constitute res judicata, the thing demanded must be the same and the demand must be founded on the same 'cause of action.

The thing demanded in the former case was possession as lessor; the thing demanded in the present case is possession as owner; the cause of the action in the case invoked was the refusal of possession of a tenant to his landlord; the cause of action in the suit at bar is disturbance of possession as owner.

From the very composition of the court which rendered the previous judgment, it is apparent that the question of possession as owner could not be an issue in the cause; and hence it follows that, if such an issue had been presented and adjudicated upon, the judgment rendered would be absolutely null, for -want of jurisdiction ratione materke in the court which had rendered it.

The argument that the right of possession as owner was the defense which Mrs. Huyghe should have urged in the ejectment suit, and that such a point properly belonged to the decision of the cause, falls of its own weight, when met by the fact that the court was without jurisdiction to entertain and pass upon such an issue.

As the issue was not made, it was not decided; if it had been made., it could not have been entertained or decided. Hence, it cannot be considered as an element of the judgment and, therefore, it cannot be invoked as an estoppel to the present action. Thompson vs. Nicholson, 12 R. 327 ; Kling vs. Séjour, 4 An. 128.

Tiie judgment of the lower court is, therefore, annulled and reversed, the exception of res judicata is overruled, and the cause is remanded to the Civil District Court, Parish of Orleans, to be proceeded with according to law, appellee to pay costs.of appeal.

Rehearing refused.


author: Pochjs, J. By Bermudez, C. J.:

text:
    No. 8679.
    Wm. T. Levine et al. vs. Bernard Michell.
    The right of appeal from an interlocutory decree dissolving an injunction on bond, under Art 307, Code of Practice, must be tested by the nature of the damages complained of in the petition for injunction.
    If, from tli© pleadings it appears that such damages can be compensated in money, or otherwise repaired, the injury caused by the order is not irreparable, and no appeal will lie therefrom. Previous decisions affirmed.
    APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Livaudais, J.

      J. B. Beckwith, for Plaintiffs and Appellants:

      F. O. Zaeharie and F. IE. MeCaleb, for Defendant and Appellee:
    1. The order appealed from does not work irreparable injury. C. P. 307; 2 An. 321; 4 An. 147; 12 R. 489 ; 11 An. 40 ; 14 An. 847:
    2. This Court has no jurisdiction in the case where the appeal is taken from an interlocutory order dissolving an injunction on bond, unless the damage complained of works an irreparable injury. (Same authorities as above.) 14 An. 57; 23 An. 152; 29 An. 360; 32 An. 1192; 33 An. 133 ; 33 An. 943 ; 33 An. 760; 33 An. 930.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Pochjs, J.

Plaintiffs, composing “the Branch Pilots’ Association of the Port of New Orleans,” obtained an injunction on a bond of five hundred dollars, restraining the defendant, one of their associates, from pursuing the business of piloting vessels in and out of the port of New Orleans, independently of said association of xfilots, and from violating any of his obligations as a member of said Association pending the suit filed against him, for the purpose of enforcing specific performance of his obligations as a member of the same.

On defendant’s motion, the court issued an order dissolving the injunction, under a bond of five hundred dollars, in accordance with the provisions of Art. 307 of the Code of Practice.

Whereupon plaintiffs obtained a suspensive appeal from the decree dissolving the injunction on bond, by a petition in which they allege the irreparable character of-the damages complained of in their injunction proceedings. Defendant’s motion to dismiss the appeal is predicated substantially on the ground that the interlocutory decree appealed from does not work irreparable injury and that the matter is not appealable.

The rule is now well established, that the test of the right of appeal must be found in tire consideration of the character of the damages complained of, and that for the purpose of such examination the facts alleged in the x^etition for injunction must be taken as true, and furnish the vital point of .the investigation.

Plaintiffs charge, in substance, that in wanton violation of hi,s covenant as a member of the Pilots’ Association, the defendant has wilfully and fraudulently engaged in the business of carrying on pilotage outside of the Association j appropriating to himself all fees and emoluments thus earned and received, instead of accounting therefor to the Association; by which course of conduct, in which he will persist if not enjoined, he will cause said Association “irreparable injury exceeding the sum of two thousand dollars.” It strikes us that, tested under their own allegations, the damages which may be suffered by plaintiffs through the acts of defendant can be measured in money, and are therefore not irreparable.

. By the very means of observation through which plaintiffs have detected and are able to enumerate the acts of defendant in boarding vessels and piloting them, they are afforded an efficient method of computing the damages which the defendant will cause to the Association, pending the litigation which will finally adjust the conflicting claims of all parties to the suit.

Plaintiffs’ counsel bitterly denounces the jurisprudence which has so signally misconstrued a provision of law; and thus enables an enjoined defendant, by means of an insignificant bond of five hundred dollars, to continue in the performance of his illegal acts, thus provisionally chartering crime and wrong.”

• In advancing these views, and in advocating a construction under which a defendant, in such an injunction, would be deprived of the right of dissolving the same on bond, counsel loses sight of the fact ■that, on furnishing an insignificant bond of five hundred dollars, these plaintiffs have suddenly, without warning, and for an indefinite time, X>aralyzed and checked the defendant from the pursuit of a calling useful to commerce and profitable to himself, in anticipation of a judgment which may deny him that right, but which may on the other hand maintain him in the pursuit of that identical business.

It has been held, that “ the power given by Art. 307 is one highly conducive to the administration of justice,” and we see no circumstances in this cause which would justify a denial of its conservative relief to the defendant in this case.

The rule which we enforce in this instance is well recognized in our jurisx>rudence, and we have had several recent occasions to consider and to re-affirm it as legal and wise.

Plaintiffs’ counsel has built all his hopes of success in maintaining his present appeal in an elaborate effort to obtain a revolution in our established jurisprudence, which he violently assails in a brief which will receive proper notice in another proceeding-.

Further consideration of the subject has led us to the conclusion that our reasoning in this opinion is staunchly supported by a formidable array of authorities, among which we quote the following cases: Jure vs. City of New Orleans, 2 An. 321 ; Stetson vs. City of New Orleans, 12 Robinson, 489 ; Cobb vs. Parham, 4 An. 147 ; Delacroix vs. Villeré, 11 An. 40; Anderson vs. Smith, 28 An. 649; State ex rel. Cummings vs. Judge, 29 An. 360; Crescent City Live Stock Company vs. Police Jury, 32 An, 1192; State ex rel. Sigur vs. Judge, 33 An. 133; Osgood vs. Black, 33 An. 493 ; State ex rel. Gravois vs. Judge, 33 An. 760 ; C. C. La. Co. vs. Butcher’s Union, 33 An. 930.

This appeal is, therefore, dismissed, at appellants’ costs.

By Bermudez, C. J.:

The brief filed by counsel, in opposition to the motion to dismiss, in the ease of Levine vs. Micliell, just decided, is in tone and substance, highly indecorous.

It is an unmitigated, contemptuous and unfounded attack upon the laws, the jurisprudence, the practice and the judicial system of the State.

It assails and denounces, in most unacceptable terms, the application which the highest court of the State has successively, for a long series of years, made of those laws under the jurisprudence and that practice, notably in the case of Osgood, 33 An. 498, with which this attorney was connected.

The disrespectful form and mode in which the attack was made, and in which our own ruling, in two cases, was criticised, (33 An. 498 and 133) are clearly and justly offensive to the Court.

The respect which we owe to the judicial power which we represent forbids that we should tolerate such conduct.

We might, in the exercise of our inherent powers, apply the law with rigor, but we will not do so.

Counsel having violated the known rules of decorum by which, everywhere, the intercourse bettveen bench and bar has invariably been guided, his brief cannot be permitted to remain of record.

It is, therefore, ordered, that the clerk of this Court do expunge from the files of the case the brief in question, submitted by it's author, J. B. Beckwith, Esq.


author: Manning, J.

text:
    No. 7600.
    Widow Ledoux et al. vs. James West.
    In establishing a servitude upon a strip of ground for an alley way, the ground being described not only by boundaries but the dimensions in feet being also stated, and the proof being that the alley had never extended beyond tlie number of feet stated, and was only of xliat extent and dimensions when the servitude was created, held} —that such sale was not per averdonem, and the servitude existed only upon the ground to the extent enumerated in the Act of sale, since it conformed to the quantity actually devoted to such usd at the time of sale.
    Servitudes not being susceptible of actual delivery, the use which the owner of the estate makes of them determines their extent.
    APPEAL from the Third District Coart for the Parish of Orleans. Monroe, J.

      Mott, Kelly & Saunders, Bayne & Benhyre and H. Benshaw, Jr., for Plaintiffs and Appellees.

      Henry P. Bart, for Defendant and Appellant:
    I.
    1. The proprietor of a private way who sells the privilege and use thereof to another, creates . thereby a conventional servitude — no matter by what name he designates the thing sold. C. C. 754, 756.
    2. Such sale does not divest the vendor or ownership of the land; (C. C. 656), and words indicative of the sale of use in perpetuity are merely to prevent dissolution of right on grantee’s death. C. C. 719, 758.
    3.. A sale of this nature must be interpreted by the laws regulating servitudes, not those concerning sales of land, and in case of doubt, as to.extent of grant, the interpretation is always in favor of property to be affected. C. C. 753. And his heirs and assigns are concluded by the use made thereof by the grantee. C. C. 743.
    4. The action to recover the servitude thus granted is petitory. C. P. 45; Miackeldey Com. C. L., Tit. Serv., p. 352; (Kaufman’s Kd., 1845); 1 E. 251; 10 Howard, 257; and plaintiff must make out his title, otherwise defendant will be discharged. C. P. 44; 33 A,n. 250.
    H.
    1. This servitude is extinguished by non-user during ten years. C. C. 789; 12 M. 70; 1 E. • 321. And if used in less extent than granted, will be reduced to that extent. C. C. 794, 796, 798; the extinguishment being based on the presumed abandonment of the right, lb.

    2. Once prescribed against, the servitude in question can only he replaced by a title or judgment condemning the owner of the fee to permit the exercise. Ho other evidence can be received to show re-establishment of alley — prescription once accomplished. C. C. 765, 767, 770; Burke vs. "Wall, 29 An. 43.
    3. The prescription of non-use opposed to this action threw on plaintiff tlie burden of proving such acts as will take his case out of the rule. C. C. 804; 12 M 70; 1 E. 321.
   Tlie opinion of tlie Court was delivered by

Manning, J.

Tlie plaintiffs own three lots, Nos. 110, 112, and 114 St. Charles street, which have the same depth so that their rear lines form one straight line. The defendant owns a lot which fronts on North street, and is separated on the side from the rear of the plaintiffs’ lots by an alley four feet in width. The length of this alley is the matter iu controversy, the plaintiffs asserting that it extends from North street the entire rear line of their lots, and the entire side line of defendant’s lot, while the defendant maintains that it stops short of that distance. According- to the plaintiffs’ assertion it is seventy-four feet and a fraction in length. The defendant maintains it is fifty-six feet only. The plaintiffs claim a servitude and right of way upon and through the alley the full distance of the rear line of their lots, and the defendant resists it.

L. S. Parmly owned the defendant’s lot and others adjoining it iu 1846, and built upon them then, and opened an alley way along his side line. Ameron Ledoux owned the plaintiffs’ lots.

In April, 1847, Parmly sold to Ledoux for five hundred dollars the privilege and use of an alley having four feet in width fronting on North street, and running hack along the property of Ledoux to the rear line of said property, that is to say to the depth of about fifty-nine feet, which alley is intended shall be used in common by them, their heirs and assigns forever, the use of the same being purchased for the benefit of the property of Ledoux.

The words — that is to say to the depth of about fifty-nine feet — are not in the body of the Act, but were added at the close, and before it was signed, and it is not disputed, with the knowledge and assent of both parties.

At the time of this purchase the alley was open from North street to the depth or length of fifty-six feet, at which point there was a gate. This gate was put there by Parmly when he made the alley — was there when he sold the right of way to Ledoux — and has been there ever since. In other words the alley, as made or opened by Parmly, did not extend beyond this gate, and has not been extended beyond it at any time. There was never an opened alley way along the whole rear lino of the plaintiffs’ lots, but only to this gate. Ledoux lived twenty-three years after his purchase of the right of way and never made' claim to the use of an alley beyond the gate, this suit haviug been instituted by his widow and others deriving title from him in 1878.

The plaintiffs contend that the description in the Act of the property upon which the servitude was created constitute it a saleper averemiem, and that the specification of the boundaries controls the enumeration of quantity, and if there was error in the-latter there was and could be none in tbe former, and hence the alley must run back along the property of Ledoux to its rear line, and is not restricted to the depth of fifty-nine feet or thereabout.

There, cannot be any doubt as to wliat a sale per (wereionem is, as defined by writers, and explained and interpreted by judicial decisions. The only controversy here is whether this sale, in manner and form as already set forth, is within that definition. We do not think it is.

■ The description of the alley by boundaries in the Act, as drafted by the notary, extends it along Ledoux’ property to the rea.r line of .that property. The vendor evidently apprehended that such would or might be its construction. Both parties knew that in fact the alley did not extend that distance — was not opened along the whole of Ledoux’ property — but that it was terminated by a gate distant from North street somewhat more than fifty feet. The precise number of feet was not known or recollected. The actual distance we now know was fifty-six feet. The notary was directed to state at the end of the Act it was about fifty-nine feet, and it cannot reasonably be doubted that this care was taken to alter the description so as to negative the construction that the language, if unaltered, would justify. Ledoux so understood it, and acted on that understanding for near a quarter of a century.

. Servitudes are not susceptible of real delivery, and hence the use, which the owner of the estate to whom the servitude is granted makes of this right, supplies the place of delivery. Rev. Civ. Code, Art. 743. The use which Ledoux made of his right conforms to the enumeration of quantity in the Act, and shews that such enumeration was intended to control the specification of boundaries.

. -Ledoux’ object in the purchase of the servitude was the benefit of his property, and the manner in which he exercised his right shews its extent. Lot 114 has never had an opening into the alley. The other two have, and the obstructions complained of are in the rear of a portion of lot 110. There is a door, or gate in the rear wall of that lot abutting the alley, giving ingress and egress to and from the alley, which is neither hindei’ed nor obstructed by the gate across the alley. Construing the Act of purchase, as'restricted to “about fifty-nine feet” of alley way (fifty-six in fact) the purchaser has for the lot most-affected the benefit of a way which is.shewn by his own acquiescence, to have been of no greater extent than the quantity specifically stated in the Act.

It is argued by the plaintiffs that the defendant is estopped from denying that the alley extends the entire distance from North street to the rear line of their property, because of the description of his own property in his Act of purchase. :

West acquired from Parmly through mesne conveyances, and the description, after giving the number and dimensions of the lot, adds “between parallel lines, with the use of a privy in the rear, and the right of the alley leading thereto (which said privy is to be kept in order at the expense of the owners of lots one, two, and three) being a portion of the property,” etc. To comprehend this, it must he stated that Parmly’s property, as owned by him when he made the alley in 1846, was afterwards divided into three lots, and acquired by different persons, the defendant’s lot being No. 3. There was a privy built oh the rear part of No. 3 which was common to Nos. 1 and 2 — was for the use of the three lots. In selling one of .these lots, it was a necessary provision to give access to the privy, and therefore a right of way through the alley leading thereto was stipulated for lot No. 3 as against the owners of the'two other lots.

But that was Parmly’s affair, not Ledoux’. It was a stipulation to secure the owners of three lots into which Parmly’s property was divided in the use of a right common to all of them. The privy was to be kept in order by the owners of those three lots. If the owner of either of the other lots had prevented West from enjoying his easement, he could have set up his own title in vindication of his right to it.

But if West acquired such right from Parmly as against lots one and two, that does not enlarge the right which Ledoux acquired for a different purpose for his own lot on the opposite side of the alley. And besides, the stipulation of Parmly in favor of West may well he considered as referring to the passage way common to Parmly’s three lots.

The judgment of the lower Court was erroneous. Therefore,

It is ordered and decreed that the judgment of the lower court is avoided aDd reversed, and that there be now judgment in favor of the defendant James West against the plaintiffs herein, rejecting their demand, and that he have and recover of them his costs in the lower court and the costs of this appeal.

Rehearing refused.


author: Todd, J. Fenner, J.

text:
    No. 8536.
    In the Matter of the Successions of Zenon and Elise Labauve. Oppositions of Barrow & Pope, Herron & Gallagher and Andrew Caneza.
    1. Where an attomey-atdaw is employed to collect certain judgments, his fees are not exigible until the judgments are collected or their collection shown to he impossible.
    2. The death of the client does not dissolve such contracts, and the attorney can and should continue his services to accomplish the purpose of his employment, üüless prohibiífed to do so by the legal representative of the accused, And where the attorney is not thus forbidden to aGt, the death of the client does not have the effect of itself to make the fees of the attorney exigible. Judgment amended.
    A PPEAL from the Twenty-third District Court, Parish of Iberville. ¿1 Oole, J.

      Barrow & Pope, for Opponents and Appellees:

      1. Eees of attorneys are to be measured by: 1st. Extent of legal knowledge. 2d. The responsibility incurred. 3d. The difficulties of the case. 4th. The amount in controversy. 5th. The physioal and mental labor incurred. 6th. The usual charges for similar services. 21 An-. 687; 30 An. 463 ; 6 5T. S. 399.
    2. The opiuions of tho members of the local bar as to value of attorney’s fees, while not conclusive, will be considered by the court when corroborated by the record, and when services do not fully appoar of record, the court will be entirely governed thereby. 30 An. 463, Succession D. P. Jackson ; 11-An. 637, Brewer vs. Cook.
    3. A retainer of counsel to attend to the preservation or collection of certain judgments, . without a stipulation of labor to be performed and the compensation to be paid, does not constitute such a contract that counsel could demand to be retained until the judgments are collected. 10 W. 496.

      4. Under such an employment counsel is entitled at the determination of his employment to . be paid for services rendered.
    5. The death of the client ends the employment of counsel. He cannot appear for the heirs of the administrator without 'a new retainer. Stith vs. Wenbash, 3 La. 442 ; O. C. 3027; 4 Mit. 333 ; 1 Man. & S., 74, 76.
    15. Employment of new counsel on new argument would discharge former counsel. 10 Wall. 496.
    7. The fee for services rendered is independent of the benefit received, where there has not been negligence, want of skill or a stipulation to the contrary. Labor is to be rewarded in proportion to tho pains taken in it, and not in proportion to the results produced by it. ‘ Weeks on Attorneys, §334 ; 2 Kob.385 ; 27 How. p. 212.
    8. Where the labor of an attorney has settled many defenses urged against a claim, and has maintained tbo status quo of said claim on property, the services have been beneficial to tho client, and a fair fee should be allowed, much more where the rank of the claim has been advanced by permitting* it to pro rate v ith the first mortgage.
    9. Prescription only begins to run for fees when the employment is ended, although there may be several judgments rendered in the cause of the employment.
    10. Where an account has been rendered, the prescription of ten years alone prescribed attorney’s fees. An account delivered to the agent is delivered to the principal.
    11. Where the claim agaiust a succession is under one thousand dollars, this Court has no jurisdiction on tho question of “indebtedness or no indebtedness,” raised in an opposition to the account.

      J. O. Nixon, Jr., and ,B. B. Talbot, for the Administrator, Appellant.
   Tlie opinion of the Court was delivered by

Todd, J.

This controversy grows out of the oppositions named above to tlie provisional account of the administrator of the Successions of Zenon and Elise Labauve, deceased.

Messrs. Barrow & Pope and Herron & Gallagher claim to be creditors of said successions for $600, for services rendered by them jointly ns attorneys-at-law, and Messrs. Barrow & Pope, for the further sum of $2,832 for similar services, and Caneza for $770.80, for moneys alleged to have been paid out by him for the benefit of said successions. They ask to be recognized as creditors, respectively, for these several sums and oppose the homologation of said account, because tlieir claims have not been placed thereon.

From a judgment allowing these claims with a slight reduction, the administrator has appealed.

The demands are opposed on the ground that they are not owing by the successions, and the prescription of three years is also pleaded against parts of the claims for the attorneys’ fees. Judge Labauve died in 1870, and Mrs. Labauve'in 1880.

Previous to the death of the former, he had obtained three judgments against Mrs. Eliza Woolfolk, amounting, in principal and interest, at the present time, to over $60,000.

The attorneys named were employed by Mrs. Labauve to collect these judgments. The efforts to do so, and to defeat the measures taken by the judgment debtor and others to avoid their payment, gave rise to a great deal of litigation, long protracted, and which has been several times before this Court. 24 An. 282 ; 26 An. 440 ; 30 An. 140; 31 An. 130.

The counsel caused the judgments to be revived and rendered other professional services to the successions not connected with these judgments. All the litigation mentioned and the many suits relating thereto did not result in the collection of the judgments. They remain uncollected to this day.

In relation to the services of the counsel, connected with the judgments in question, it is contended that inasmuch as they were employed to collect these judgments, which has not been accomplished, that the fees for their services are not due and demandable and will not be until the object of their employment is accomplished and the judgments collected.

On the other hand, it is urged by the opponents that they were discharged from their employment by the death of Mrs. Labauve, and such fact entitles them to demand payment at once for their past services.

It is all important, for the determination of this issue, to ascertain the precise terms on which the opponents were employed.

On this point we have to rely almost exclusively on the testimony of Mr. Barrow, one of the opponents, by whom the services charged for were mainly rendered. And in this connection, and in view of the conclusion reached by us touching the terms of the contract with Mrs. Labauve, we deem it proper to quote portions of his testimony in the record bearing most directly on the point-in question :

“My first connection with the business of Mrs. Labauve and of the estate of Judge Zenon Labauve, began about June 21st, 1872, when I was associated with Herron & Gallagher, in the prosecution of suit No. 1432 of the late 5th District Court, of Mrs. E. Labauve vs. Mrs. Emily Woolfolk et al., when we were retained for the purpose of enforcing the judgments against Mrs. Emily Woolfolk, in favor of Zenon Labauve, in suits Nos. 71, 73 and 168.
The first step taken in that matter was the injunction in suit 1462. Subsequently, after the decision in that case, Barrow & Pope were retained to continue and endeavor to collect the above judgments.”
My employment terminated at the death of Mrs. Labauve. I am! now employed by the administrator of Mrs. Labauve’s succession under a special agreement, and am associated in the matter with the attorneys of the estate. Nothing is realized in the shape of money from the Woolfolk litigation.
“ In saying I might ask for something on account, was only acting bn the custom when you- are rendering services to a party, and that party has the means, and may ask for something on account, although the-services are not concluded and the fees not actually due. In this case, the estate not having money,T never asked for any.”

The testimony of Major Herron was also taken and it corroborates that of Mr. Barrow, as relates to the object and terms of his firm, respecting that part of the business in which he co-operated with Messrs. Barrow & Pope. ■■

It appears from this testimony that the opponents were employed to collect the judgments designated and that there was no stipulation or understanding in regard to the amount.of the fees. Under this contract they were entitled to continue their services and were bound to do so until the sole purpose of their employment was accomplished, or until its accomplishment was shown to be impossible. - •

The employment of the opponents, under the terms of the-contract; did not, in our opinion, terminate at the death of Mrs. Labauve. It was competent for the opponents to enforce the contracts at the propel1 time against her succession and continue • their services under it; unless discharged by the administrator.

Mr. Barrow does not say, as a matter of fact, that he was actually discharged either by Mrs. Labauve or the administrator; but his statement on this point, about his employment terminating at the death of Mrs. Labauve, was evidently a mere deduction drawn by him from that event — his legal opinion of its effect upon the contract.

' As stated, we think otherwise, and his firm had the right to continue their services in furtherance of the end in view, as if Mrs. Labauve were still living, unless forbidden to do so. Nor does the fact of these gentlemen being associated with the attorney' Of the'succession, of itself, operate to discharge them. It is fairly to be inferred from this association that their employment was continued with special reference to. the collection of these judgments, since their familiarity with the business and their well earned experience rendered their services, it is to be presumed, almost indispensable.

The judgments in question remain in the same condition as at Mrs. Labauve’s death, or, as explained by Mr. Barrow, that he had only succeeded in clearing away the obstacles interposed by the opposing parties to their collection.

Under the circumstances, we do not consider that the fees for the services in question are now exigible. The death of Mrs. Labauve did not render them so.

The law on this point is correctly enunciated in this quotation from. u Weeks on Attorneys-at-Law : ” That where a contract was made for the prosecution of a claim * * and the attorney rendered certain services under such contract, the death of the client did not dissolve' the contract, but the compensation remained a lien upon the money when recovered.” P. 598; also Wylie vs. Cox, 15 How. 415.

Nor, in the views expressed and conclusion reached, would we wish to be considered as contravening the general rule on this point, which, as we understand, is that no agreement is implied on the part of an attorney when he puts a claim in suit for his client or receives one for that purpose; that he must look to the claim only as the means of satisfying his charges, or that .he must wait for his pay until it is determined whether it is collectible or not.

The faets of the instant ease do not bring it within thisrule, and our conclusion is based upon the evidence relating to the engagement in. question, as disclosed by the record.

The charge of $100 for fee in succession of Louis Petit, on opposition, is a correct change. There is no dispute about the services being rendered, and the fee charged is a reasonable one.

As to the rest of the charges in the account, being fees in cases of Mrs. E. Labauve vs. Posey & Lyle, $1,000; Mrs. E. Labauve vs. John N. Lyle, $75; reviving judgment of Labauve vs. A. Petit et al., $100, we. are compelled to sustain the plea of prescription against them.

The services charged for in the first two cases were rendered in 1873, and the judgment of revival in the case last named was rendered on the 4th May, 1878, and the opposition was filed' on the 17th of June, 1881; consequently, more than three years had elapsed between the date of the services and the demand made in the opposition.

It is not shown that the account for these fees was ever acknowledged^ by Mrs. Labauve, or in fact was ever rendered to her. No authority was shown in her alleged agent, Caneza, to acknowledge the account, nor was it shown that the alleged imputation of payment made thereon was approved by Mrs. Labauve, and besides, more than three years had elapsed from the time of the payment to the date of the judicial demand. Moreover, it would require a higher degree of evidence than that relied on to show an interruption of- prescription against a. succession. ’

In regard to the claim of Caneza, we think it was improperly allowed; it exceeds $500 and is not supported by the required evidence. C. C. 2277.

The fact that Caneza rendered an account of his agency to Mrs. Labauve a short time before her death, embracing the periods when those payments for her, or on her account charged for, purport to have been made by the agent, and in this account showed a balance against himself which he paid to Mrs. Labauve, creates a presumption against the correctness of the claim now urged against lier succession. Why should he pay over money to Mrs. Labauve on an acknowledged indebtedness, if at tlie same time she was owing Caneza a much larger Btim? His opposition should have been dismissed.

This disposes of all the matters embraced in this appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended as follows: That the opposition of Barrow & Pope, and Herron & Gallagher, be dismissed as of non-suit, and the opposition of Barrow & Pope be also dismissed, as of non-suit, as ¿.elates to their claims for services rendered in cases of Zenon Labauve vs. Emily and J. B. Woolfolk, Nos. 71 and 73; Zenon Labauve vs. Emily Woolfolk, No. 168; Mrs. Elise Labauve vs. Henry R. Slack, Louisiana Woolfolk et al. vs. Emily Woolfolk, Mrs. Labauve et ah, intervenors, Mrs. Elise Labauve vs. Emily Woolfolk, No. 1432, reserving to all of said opponents the right to prosecute their demands hereafter under the conditions stated in our opinion, and with the exception of the charge for services rendered in the succession of Louis Petit, on opposition of Mrs. Labauve, that the said opposition as-to the residue of the demands therein asserted, be rejected; and that the opposition of Andrew Caneza be dismissed, as of non-suit, and as thus amended, the j udgment is affirmed, the costs of this Court to be paid by the opponents.

Levy, J.,'absent.

On Application por Rehearing.

The opinion of the Court was delivered by

Fenner, J.

We granted a rehearing in this case, for the purpose of reconsidering our determination of the oppositions of Barrow & Pope, and Herron & Gallagher, and of Barrow & Pope, so far as relates to their claims for services in the Woolfolk litigation.

We reiterate the general rule stated in onr original opinion, that no agreement is'implied on the part of an attorney, when he puts a claim in suit for his client or receives one for that purpose, that he must look to the claim only as the means of satisfying his charges, or that he must wait for his pay until it is determined whether it is collectible or not.”

A review of the evidence in this case raises grave doubts as to the correctness of our original conclusion, that the particular facts of this case bring it within any exception to this general rule.

The issue as to the exigibility of the fees claimed, before the final termination of the litigation, under the particular contract between Mrs. Labauve and these opponents, does not seem to have been distinctly presented in the lower court, and the testimony as to the nature of said contract is vague and ambiguous.

We deem it safer to recall the bpinions expressed by us on that subject, and to make our judgment of non-suit, as to these charges, a simple one, unrestricted by any conditions resulting from said expressions of our original opinion.

We find no occasion to change our original decree in any other respect.

It is, therefore, ordered and adjudged, that our original decree herein be amended, by striking therefrom the following words: “ Reserving to all of said opponents the right to prosecute their demands hereafter under the conditions stated in our opinion,” and that, with this amendment, in all other respects said original decree remain undisturbed.

Manning, J., takes no part.