author: Slidell, J. Eustis, C, J. Ring, J.

text:
    Glenn, Tutor v. Elam, Tutrix.
    A tutor who employs, for his own advantage, slaves belonging to bis pupil, or occupies land belonging to liim, will be bound to tbe latter for any profits which might have been derived from hiring the slaves, or letting the lands, to a third person. C. C. 327, 328.
    Where a tutor, without authority, compromises the interest of his pupil in a promissory note, he will not be liable for the nominal amount of the portion of fcho note due to his pupil, but for its fair value at the date of its illegal alienation by him. C. C. 333.
    Whére a tutor involves the estate of his pupil in a litigation which is judicially pronounced to have been vexatious, and for which the estate is compelled to pay damages, he must be charged with the amount of the damages.
    The husband, as head and master of the matrimonial community, may dispose of its moveables even by a gratuitous title, for the benefit of any person.
    The revenues .of the separate estate of the husband form apart of the community; and where debts due by the husband before marriage, have been paid by him during the com. munifcy out of the revenues arising from his separate estate, as he had a right to do, his separate estate will be responsible to the community, aftoritS' dissolution, for the amount of the debts so paid. C. G. 2372, 2377.
    Where the amount .due from a tutor has been ascertained by a judgment, interest is due on the amount from the date of the judgment. - -
    A tutor who has neglected to invest, in the name of the minor, the excess of the revenues of the latter over his expenses whenever such excess amounts to $500, is liable for legal inte > rest on such excess. C. C. 341. Stat 19 February, 1825. In adjusting the accounts of the tutor the entire revenues of the pupil, including any interest which the tutor may have become liable to pay under art. 341 and the stat. of 1825, are to be computed annually; and the excess of the revenues of the minor over his expenses, is to be considered as forming from that date, a part of his capital in the hands of the tutor, and, upon that excess, when it amounts to $500, the tutor owes legal interest, if he fail to'invcst it as required by law.
    APPEAL from a of the District Court of Catahoula, Barry, J.

      O. N. Ogden, for the appellant.'
    Mayo, for the defendant.

      McGuire and Ray, for the minors, Gillespie,

   The judgment of the court in this case was pronounced by the Chief Justice, and Justices King and SlidelL

Slidell, J.

The present controversy arises from proceedings instituted for a partition of the estate of Lucius W Elam,. The parties are, Glenn, tutor of the five children, issue of the marriage of L. W. Elam and Elizabeth H. Bray; Mrs. Ann B. Gillespie, in her own right, and as tutrix of the two minor children, issue of her marriage with L. TF. Elam; and S. P. V. Gillespie, under-tuto;* tof the last named minors.

L. W, Elam, was twice married. On the 14th- June, 1832, he married Elizabeth H. Bray, who died .on the 14th January, 1843, leaving, as her sole heirs, the five .children above named. He contracted a second marriage, with Mary Ann B. Gillespie,on .the 22d February, 1844, and died on the 12,th October, 1847, The first wife left a separate estate. There was also, at her .death, a considerable .property, belonging to the community of acquests and gains, which had existed between her and her husband. He was confirmed as natural .tutor of his five minor .children, and retained possession of the separate property of his wife, as well as of ¡that belonging to the community ; continuing to possess and use the whole as though he were owner. He took no steps to liquidate the community, nor effect a partition of it between himself and his children.

On the 18th April, 1843, at the suit of J. W. Stone, the under-tutor of the five minor children, a judgment was rendered by the Probate Court of Catahoula, against Elam, in their favor, for $11,807 50, .being the amount due to ithem by him for paraphernal property of their mother, which he had received and converted to his own use. This judgment also declares these minors,to be the .owners, .by inheritance from their mother, of two slaves in the .possession of the .defendant, and to he entitled, in the same right, to an undivided half o.f fifteen.other slaves,'also in his possession. He executed, in April, 1844,, a special mortgage iu favor of his .children for the amount of the judgment .against him.

Elam .was himself the separate owner of certain property. After his second marriage he acquired other property. He contracted debts during his first marriage .which were paid during the second. Mrs. S. P. V. Gillespie, appears to have had no separate property. She was in .community with her husband.

In the consideration of this case w.e .will ascertain .the ownership of .the several items of real and personal estate and slaves involved in this controversy, and .then examine ,a variety of questions of law and fact material to its decision.

I. T,he separate property of Elizabeth H. Bray, consisted of certain slaves .and personal .effects, of which she was the sole owner, and certain other slaves .of which she owned .an undivided half. This separate property is detailed in .the schedule marked A, annexed as part of the decree in this cause. The .extentof her .undivided interest has .been questioned by .the widowand children ,of .the second .marriage ; but we consider the judgment of .the Court of Probates, rendered .before the second marriage was contracted, and other evidence in .this .cause, as .closing and satisfactorily .establishing the extent of her interest.

II. The separate properly of Lucius W. Elam. This is .exhibited in schedule B, annexed as part of the decree in .this cause..

III. The property of the .community of acquets and gains, which .existed •between Lucius W. Elam and Elizabeth H. Bray. This is exhibited in schedule C, .annexed as par.tof the decree in this cause.

IV. The property of the community of acquets-and .gains which existed between Lucius W. Elam and Mary Ann B. Gillespie. This is exhibited in schedule D, annexed as part of (he decree in. this cause,. In these schedules are not included.certain claims .belonging to or due by these estates, which will be specially noticed hereafter.

V. Various.claims are set up by the minors of the first.marriage, against their father, their tutor, and the surviving partner of .the community which existed between him and their mother.

1st. They claim interest, at the legal rate, on the sum of $11,807 50, an amount of money ascertained in their favor, as regards the separate estate of their mother, by the judgment of 18th April, 1843. The grounds of the allowance of this claim are stated in the opinion of the Chief Justice, infrd, to which we refer.

2d. They claim reasonable hire in compensation of the services of the slaves, which, some in whole and some in part, belonged to the separate estate of their mother. To this they are {dearly entitled. The tutor is bound to manage the estate of the minor as “a prudent administrator”, for the benefit of the minor ; and cannot enrich himself at the expense of his ward. Having employed the slaves for his own advantage, he must make retribution, to the extent of the advantage he could have procured for them, if he had hired the slaves to a third person. . C. C. 327, 328, etc. This is a contest as to the amount whieh should be allowed. Under the evidence we must estimate it at $110 per annum, the expenses of food, clothing, and taxes, etc., being considered at the charge of the employer. 'The items of this claim are stated in schedule E, annexed as part of this decree. The same remarks apply to their interest in the slaves of the community.

3d. They claim reasonable compensation, in lieu of rent of the lands belonging to the estate of their mother as partner in community. This claim stands on the same footing as the preceeding item, and must be allowed. The items of this claim are stated in schedule F, annexed as part of this decree.

4th. They claim interest on the revenues which would have been derived from the hire of the slaves, the rent of the lands, and the interest on the money due to them under the judgment, if these revenues had been invested for their benefit. The reasons for allowing this claim, are stated in the opinion of another member of this court, to which we refer. [See opinion pronounced by King, J. infrd.~\

5th. They claim to hold their former tutor liable for a large sum, under the following circumstances. Elam, during his first marriage, sold certain lands and slaves, in a portion of which Mrs. Elam had a séparnte interest, to J. A. Bynum, for whieh he received three notes of $8333 33, bearing ten per cent-interest from January 1,1839, and payable respectively in 1840,1841, and 1842. For the portion of the price which her separate property brought in this sale, these miners had judgment* in April, 1843. The item forms part of the judgment of $11,807 50, already mentioned.

It is conceded by counsel, that the notes formed part of the community of the first marriage, which we will hereafter designate as the Bray community, The first of these notes was negotiated by Elam, during the first marriage, and requires no attention. The second note was transferred by Elam, in 1840, to Duncan, as collateral security for a debt of $9000 and interest, due by Elam to Duncan. The circumstances of this transfer are stated in the case of Duncan v. Elam, 1 Rob. 135. Duncan subsequently returned this note to Elam, who transferred it, with the third note, to Isaac Thomas, in 1841. Subsequently Thomas re-transferred these notes to Elam, who, in June, 184 3, transferred them again to Duncan in part payment of the debt due to him, at the rate of $6000, and received credit for that amount, Duncan giving him time for the residue of the debt. The transfer of the notes to Duncan was absolute; but it was at the same time declared in the deed of transfer that, the $6000 was the sum liquidated, upon settlement between Bynum and Elam, as being due by the former to the latter..

The counsel of the minors has properly said that, the tutor had not the right thus to compromise with Bynum, and alienate the property of the community without a judicial authorization ; buthaving done so, his accountability, under the evidence, is not for the face of the notes, but for their fair value at the date of the illegal withdrawal of this asset from the community. The measure of damages is established by law : — “ The tutor shall return to-the minor the estimated value of those moveables which he cannot restore in kind, or which he has suffered to deteriorate through want of care.” C. C. 333. See also Merceir v. Canonge, 12 Rob. 392. Under the evidence, our minds aré left in doubt upon the question, whether the act of the tutor was beneficial or not to the community. If the real value of the debt was not more than $6000, then the community was not injured; a debt of the community has been extinguished by giving in payment an asset of equal value, and the minors have no cause of complaint. If, on the other hand, it was worth more, or if an injurious compromise was made with Bynum after the death of Mrs. Elam, the tutor became responsible to the minors for all the injury which has been incurred. We have considered it our duty, in this state of uncertainty, to remand the cause. It will be easy, by taking the testimony of Duncan, Bynum, Thomas, etc., to reduce to a certainty what is now doubtful,

fllh. In connection with this subject there is a right on the part of the minors, which commends itself to our consideration. The tutor was bound to a faithful and prudent gestión of the affairs of his ward. While he neglected to obtain a judicial settlement of the community in which these heirs were interested, he also involved the estate in a litigation which was judicially pronounced vexatious, and was closed by the infliction of a penalty of $2500, damages. The community was thus mulcted in a heavy sum after the death of Mrs. Elam. Although the litigation began some months before her death this penalty might have been avoided by abandoning the injunction, and dealing conscientiously with the creditors, instead of forcing them to wait for a trial and judgment. The circumstances of the litigation were inconsistent with his official duty; and, we think, the minors should be relieved, by making Elam’s share in the Bray community bear the whole burden of the damages thus imposed.

7th. The minors are entitled to receive from their tutor the sum of $1200, being one-half the value of certain improvements on public land, made during the first marriage; which lands Elam, after the death of his wife, entered in his own name, and which have been treated as his separate estate.

8th. The tutor is entitled to a credit at the rate of $96 a year, for the board lodging, clothing, and maintenance of each of the minors.

VI. The Bray community must reimburse to the Gillespie community the sums paid by the latter, out of crops produced during the second marriage, to creditors of the Bray community, as shown in schedule H, annexed as part of the decree in this cause. The Bray community must also reimburse to the Gillesine community the sum of $1137 50, being the value of seven cabins, erected at the expense of the latter on the lands belonging to the former. See schedule H.

VII. The Gillespie community is answerable to the minors for their share of the hire of the slaves and rent of lands, at the rates above stated, from the date of the second marriage, to the death of Elam. The minors are accountable to the Gillespie community for their board, maintenance, etc., at the rate of 5 each per annum, to the death of Elam. See schedules E, F, and G, etc.

VIII. After due settlement of the Bray and Gillespie, communities, and of the separate estate of L. W. Elam, the several estates in controversy are to be held and divided as follows:

The five minor children of the first marriage are the sole heirs of the separate estate of Elizabeth li. Bray, mentioned in schedule A ; and, if a partition be made in kind of those slaves of which they hold an undivided half, they must take the benefit of such sole heirship accordingly. The said five minors will take, or be allowed in partition, the one-half of the Bray community, which shall remain after its liquidation and settlement,-and live,-sevenths of the remaining half; the said two minor children of the second marriage taking the remaining two-sevenths of said remaininghalf. The surviving widow, Ann B. Gillespie, will take one-half of the Gillespie community, which shall remain after its liquidation and settlement. The other half of said Gillespie community will be divided in equal shares of one-seventh each, between the seven minor children. The separate estate of the said L. W Elam, which shall remain after the settlement thereof, will be equally divided between the seven minor ehildren.

Eustis, C, J.

It has been contended that the Gillespie community is not entitled to recompense for the debts of the husband, paid by him during the community, out of revenues arising from his separate estate. If the revenues of the estate of the husband formed a part of the community, and we do not understand this to be questioned, their origin does not affect the right of the community to exact remuneration for the payment of debts to which they may have been applied.

Our views concerning the extent and intendment of art. 2373 of the Code, which constitutes the husband the head and master of the community, have been given in the case of Guice v. Lawrence, syndic, 2 Annual R. 226. Although the husband may dispose of the moveable effects of the community even by a gratuitous title, for the benefit of any person, yet the inference, from the unlimited control over the whole property of the community, that his separate estate is not responsible to the community on its dissolution for his debts which have been paid out of the funds of the community, and which he had an undoubted right so to pay, we consider as repelled by the formal provision of the preceding article, 2372, which says: . *

“ In the same manner the debts contracted during the marriage enter into the partnership or community of gains, and must be acquitted out of the common funds ; whilst the debts of both husband and wife anterior to the marriage must be acquitted out of their own personal and individual effects.”

The provision of article 2377, we understand to be-in the same sense. It negatives the idea that the separate estate of either husband or wife can be increased or improved at the expense of community without remuneration, if the improvement or increase be the result of common labor, expenses, or industry.

In a system so purely artificial as that of the community between husband' and wife, it is inadmissible to defeat these positive enactments by mere conjectural implications. See the case of Lawson et ux. v. Ripley, 17 La. 250.

It is said that the judgment for $11,807 50, rendered on the 18th of April, 1843, bears no interest, and that the court below erred in allowing interest on it.

We consider this judgment or decree, so far as the money part is concerned, ns settling the account between the minors and their father which relates to the separate estate of their mother, and not a final decree -on a settlement of the whole succession of their mother. The affairs of the community were not in a situation to he liquidated; the means of liquidation were wanting; no iuventory had been made on its dissolution by the survivor; and the judgment only-purported to settle the amount of cash which the tutor had in his hands belonging to the separate estate of the mother. We do not think that this is of that class of judgments in which, by its terms, interest is held to be allowed or disallowed.

The only case which occurs to us in which a question of this kind has been presented to us, is that of the Succession of Lunsford, 1 Annual R. 92 ; but the rule in that case is inapplicable to the facts of this.

We think that interest is due from the date on which the amount in the hands of the tutor was settled and liquidated — the I8th April, 1843.

Ring, J.

The appellees complain of that part of the judgment of the District Court which awards interest on the revenues of the minors of the first marriage, derived from the rent of land and hire of slaves, for which the succession of their father and natural tutor was held to account-.

This question appears to us to be free from doubt or difficulty, under our legislation. Art. 341 of the Code, as amended by the act of 1825 (Acts, p. 198,) provides that, “ the tutor shall be bound to invest, in the name of the minor, the revenues which exceed the expenses of his ward whenever they amount to $500, otherwise he shah be bound to pay" “legal interest” “ on such excess.” This article leaves no question as to the right of the minor to interest on his revenues, nor as to the liability of the tutor to pay interest, who neglects to invest those revenues, when their excess over the expenditures of the minor amounts to $500.

In adjusting the account of the tutor with his wards, the entire revenues of the latter, as well those derived from the rent of land and the hire of slaves, as the interest which the tutor may have become liable to pay under the article above referred to, are to be computed annually. The excess of those revenues over the expenses of the minor are considered as forming, from that date, a part of the minor’s capital, in the hands of his tutor, and upon that excess, when it amounts to $500, the tutor owes interest, if he fail to invest it as-directed by law.

The intention of the law is, that the whole estate of the minor, consisting, both of the original inheritance and of the revenues which it may have yielded, shall be productive; and this purpose can be defeated by no failure of the tutor to perform one of the' duties of his trust. See Lowe v. Armani, 9 Rob. 239-

Toullier, commenting upon the corresponding provisions of the french Coder says;

“ Les intéréts des deniers pupillaires qui sont payés au tuteur sont réuni» chaqué année aux capitaux et á l’excédant des revenus sur dépense, pour produire de nouveaux intéréts,parce qu’ils deviennent eux-mémes des capitaux." II en est de méme des intéréts dus par le tuteur. On distingue deux personnesdans le tuteur qui est debiteur du pupille. Tout administrateur qui est en méme tenis debiteur doit, chaqué année, porter en compte les intéréts des sommes qu’il doit, et qui se trouvent ainsi capitalises. Cas intéréts entreq-S dans l’excédant des revenus sur ladépense. Cet excédant doit étre employe j l’intérét en est du, fante d’emploi.” Vol. 2, no. 1217, p. 385.

It is, therefore, decreed, that the judgment of the court below be reversed f and that the property described in the schedules A. B. C. D., annexed as parts of this decree, be the property of the respective parties or estates as therein set forth. It is further decreed that the rights and claims of the respective parties be concluded by the schedules E. F. G. and H., as to all the matters-embraced in said schedules, and as therein is s'et forth. It is further decreed that this cause be remanded for further proceedings according to law, and especially for a final liquidation settlement and partition according to the principles established by the opinion of this court, and in accordance with said schedules; and that the costs of this suit be borne in equal portions by the four estates mentioned in schedules A. B. C. and D. And it is further decreed that, the tacit mortgages in favor of said seven minor children, as they exist, be reversed.

       Tho schedules referred to in .this .opinion, are not published.. B.


source: Caselaw Access Project

author: Slidell, L

license: Public Domain

text:
    Phelps v. Stone.
    Where a defendant is sued on a note, and pleads, in compensation, another note, for a larger amount, due to him by plaintiff, the latter will not be allowed to amend his petition for the purpose of claiming the amount of an unacknowledged account. The new claim not being equally liquidated with the note pleaded by defendant, nor connected with it, was not a plea in compensation or reconvention. C. C. 2205.- C. P. 375.
    APPEAL, by plaintiff, from a judgment of the District Court of Catahoula, Barry, J.

      Phelps, appellant, pro se.

      Mayo, for the defendant.
   The judgment of the court was pronounced by

Slidell, L

The plaintiff sued the defendant upon a promissory note for $200. The defendant pleaded in compensation a note made by the plaintiff for $398. On the day when the cause came to trial, the plaintiff asked leave to file an amended petition, which the court refused. In this petition he pleads that the defendant is indebted to him, besides the note upon which he originally sued, in the sum of $480, as stated in an account annexed to the amended petition, for which he prayed judgment. It is not alleged that this account had been acknowledged bj the defendant. The appellant contends that this amended petition was improperly rejected; and that the court also erred in refusing to allow him to prove, at the trial, the items of the account, for the purpose of establishing the extinction by compensation of the note held by the defendant.

We think the court did not err. On the face of the amended petition and of the account annexed, this new claim did not appear to be equally liquidated with the note, nor connected therewith. It was not, therefore, a proper subject of a plea in compensation or reconvention. See Copley v. Lambeth, 9 Rob. 137. Fagot v. Porche, 7 La. 564. Hoffman v. Ponchartrain Railroad Company, 9 La. 22. Lacoste v. Bordere, 7 Mart. N. S. 517. Civil Code, 2205. C. P. 375.

At the trial, the plaintiff offered in evidence-a voucher for an amount of $150, being one of the items mentioned in the account annexed to his amended petition. This evidence was properly rejected, independently of the reasons above stated. The voucher is a receipt signed by Stone, in his capacity of sheriff, for certain claims on the parish treasury. The voucher shows on its face that it was a matter appertaining to the official, and not the individual, business oí Stone, Judgment aff.rmed.


author: Slidell, J.

text:
    Hendricks v. Phillips.
    The restrictions imposed on the authority of a- master in the punishment of his slaves (C. C. 173. Stats. 7 June, 1806, 19 March, 1816,) are equally obligatory on an overseer, to whom the master may delegate the power of punishment contemplated by law and nocessaty to the public peace; hut if he violates these restrictions by punishing the slaves with cruelty and unusual rigor, he will he answerable to his employer in damages.
    PPEAL from the District Court of Catahoula, Barry, J.

      Purvis, for the plaintiff.

      Phelps, for the' appellant.
   The judgment of the court was pronounced by

Slidell, J.

This is an action for the plaintiff’s salary, as overseer of the defendant’s plantation at a certain rate per month. The defendant’s answer admits the employment as alleged, but avers “ that the plaintiff treated the slaves of defendant with such cruelty and- inhumanity, that, instead of benefiting this respondent, he has been greatly damaged by the plaintiff.” After specifying the acts of maltreatment and the nature of the damage sustained, he prays for judgment in re’conventi'on.

The parties, before the institution of this suit, referred their difficulties to arbitration'. The arbitrators, who took into consideration the claim for damages only, awarded to the defendant $350, as damages sustained by the defendant from the maltreatment of one of his slaves by the plaintiff, and also that the plaintiff should pay the bills of the physicians incurred for attendance upon the slave during her illness, caused by the maltreatment. This award was not, however, carried out. Numerous witnesses were examined ; and their testimony, while it'establishes that the plaintiff was an attentive overseer and made a good crop for his'employer, is extremely unfavorable to him with regard to the cruel treatment of the negro. The details are of a most revolting character, and exhibit" conduct on the part of the overSeer'utterly indefensible.

Our express legislation upon the subject of slaves is dictated by considerations of humanity, and restricts the authority of the master. The master “may correct and chastise him", though not with unusual rigor, nor so as to maim or mutilate him, or to expose him to the danger of loss of life, or to cause his death.” Civil Code, 173'. Other provisions to be found in our criminal laws are conceived in the same spirit,, and comprehend in their terms not only the owner, but all other persons. See the Acts of 1806, p. 206 ; and of 1816, p. 148.

It may be conceded that the planter who employs an overseer, in the absence of orders to the contrary, delegates to him the power of punishment contemplated bylaw, and necessary for the preservation' of discipline and the publice peace. But, certainly, the overseer is restricted by the same measure of power which the law has imposed upon the owner; and, if he trangresses it, he violates his duty, and is answerable to his employer in damages, and to public justice, which he has offended.

The verdict of the jury shows that,- they disapproved the conduct of the plaintiff towards the slave, for they made a deduction from his salary. But, however much we are disposed to defer to the verdicts of juries, we consider it our duty, under the evidence, to assess the damages sustained by the defendant at a higher rate. The sum allowed by the jury would not be more than a compensation for the loss of the slave’s labor during her illness. But we are of opinion that the value of the slave was permanently impaired by the bodily injuries inflicted .upon her. The testimony of several witnesses establishes this fact. The expense of medical attendance must also be considered.

In conclusion, we have to remark that, we do not wish to be considered as expressing an opinion that an overseer, who thus injures or destroys the property of his employer, can sustain an action for his salary. We have considered this case as it is presented 'by the defendant, who appears to have been willing to allow the overseer his salary, upon receiving compensation for the damages sustained. If, on a future occasion, the point should be presented, we shall consider it as open.

It is, therefore, decreed that, the judgment of the.court below be reversed-; and it is further decreed that, there be judgment in. favor of the defendant, and that he recover from .the plaintiff the sum of $1(10., with costs in both courts.


author: SiiDUx,!,, J.

text:
    Lovelace v. Cuny.
    Decision in Adíe v. Anty, 1 An. Hep. 260, affirmed.
    APPEAL, by the defendant, from a judgment of the District Court of Catahoula, Barry, J.

      Mayo, for the plaintiff.

      Cuny, for the appellant.
   The judgment of the court was pronounced by

SiiDUx,!,, J.

This case is not distinguishable from that of Adle v. Anty, 1 An. Rep. 260. For the reasons then given, it is.decreed that the judgment of the District Court be reversed, and that this cause beiremanded for further proceedings according to law; .the plaintiff paying the costs of this appeal.


author: Eustis, C. J.

text:
    Taylor et al. v. Jones et al.
    A probate judge, by whom tbe bond of an administratrix was accepted .and letters of'administration granted, cannot be heard as a witness to prove that one of the parties by whom the bond was signed executed it on the express condition, that other persons, who never signed it, should become co-sureties with him; nor can ‘any other person be received as a witness to establish such a fact.
    Parol evidence is inadmissible toimpeach or contradict a record of judicial proceedings.
    APPEAL from the District Court of Catahoula, Barry, J.

      G. S. Sawyer, for the appellants,
    cited 4 Cranch, 219. 1 Wright’s Ohio Rep. 667. 2 Iredell’s N. C. Rep. 338. 4 Pick, 520. 2 La. 48. 5 Cranch, 356. Shepherd’s Touchstone pp. 51-8. Root’s Conn. Rep. p. 159.

      McGuire and Ray, on the same side.
    Parole evidence is inadmissible to invalidate or explain the bond, unless attacked for fraud or forgery. Police Jury v. Haw, 2 La. 48. 1 Greenleaf, Ev. nos. 275, 278, 282 to 284, 1 Phill. on Ev. p. 548. 4 lb. no. 96, p. 1428; no. 984, p. 1466. A bond prepared for three, but signed only by two, is valid. 10 Mass. 442. 12 lb. 137. 8 Pickering, 322. 15 lb. 511. The testimony of the probate judge was inadmissible, Mathews v. Boland, 5 Rob. 200. Briggs v. Stafford, 14 La. 381.

      Purvis and' Garrett, for the defendants,
    relied on Wells v. Dill, 1 Mart. N. S. 59, 4 La. 551. United States v. Paulding, 4 Cranch, 219.

      O.N. Ogden, on the same side,
    cited 1 Serg. & Rawle, 464. 1 Wend, 47S. 1 Binney, 610. 2 Phill. Ev. 757.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a suit by the plaintiffs, who are creditors of the succession of Robert Fristoe, against the defendants, Charles Jones and John W. Stone, who signed the bond given by the widow of Fristoe, who was appointed administratrix of the succession, as sureties for the faithful administration. The trial of the case was' had before a jury, who, under a charge from the court, rendered a verdict for the defendants, and the plaintiffs have appealed.

The defence to the action is disclosed in a bill of exceptions, taken by the counsel for the plaintiffs to the admission of the evidence offered on the part of the defendants, which was received and permitted to go to the jury. The bill of exceptions is as follows:

“ Be it remembered that upon the trial of the above entitled cause, the defendants offered James O. Taliaferro, formerly parish judge of said parish, as a witness, and asked him the following questions, viz : 1 Did, or not, Jones, immediately upon signing the bond on the table of Phelps, turn to you and inform you that he had done so, but upon the express condition that it was to be signed bj Phelps, Boivie, Desha and others, as co-sureties, which was objected to by counsel for plaintiffs on the, ground, that he being the officer who authenticated the bond, administered the oath to the administratrix, and granted letters of administration thereon, all on the same paper, was not admissible as a witness to invalidate it, to add to, or diminish it, or vary its purport or effect; and also on the ground that oral evidence was inadmissible to contradict a public record, or to explain, add to, diminish, or contradict said bond ; all of which objections were over-ruled and the evidence received by the court. The de fendants also offered Truman Phelps as a witness to prove the same facts asked of Taliaferro, which was objected to by the counsel for plaintiffs, on the ground that oral evidence was inadmissible to add to, explain, diminish, or contradict the bond; all of which was over-ruled by the court, and the evidence received by the court. To all of which opinions of the court, the plaintiffs by their counsel except, and pray this bill be signed by the court, which is accordingly-done. ” Phelps was the attorney for the administratrix.

The defence for Jones, is, in substance, that he became one of the parties to the bond, on the express condition that other persons were to become co-sureties with "him. Stone, the other defendant adopts the same defence for himself.

The bond appears to be written on a half sheet of ruled paper, larger than the usual size. It is signed by Sarah E. Fristoe, J. W. Stone and Charles Jones. The names of the sureties are not inserted in the body of the bond. A blank line appears to have been left following the name of the administratrix, which is inserted in its place. There are four scrolls marked thus, [Seal]. It appears to have been taken and acknowledged before the judge on the 27 of May, 1839, the day of its date. Tho oath of the administratrix follows immediately after the bond, and with it the jurat of the judge, and then follows the fiat of the judge in these words:

“State of Louisiana, parish of Catahoula, ss: Be it known that I, the undersigned, judge, in and for the parish of Catahoula, State aforesaid, do by these presents constitute and appoint Mrs. SarahE. Fristoe, administratrix of the estate and succession of Robert Fristoe, deceased, and authorize and empower her to discharge and perform all the duties incumbent on her in that capacity according to law. Riven under my hand and seal of office, this 27th day of May, A. D. 1839. James G. Taliaferro, Parish Judge,”

The original is before is us. It is not marked filed; but it bears the impress ofthe seal of tho court, and an endorsement in the hand writing of the judge— Letters administration and Bond, and Oath of Administratrix. It is not pretended that this instrument was not in its proper place, in the archives of the late parish judge’s office. Indeed it was the whole basis of the proceedings of the succession, during years of litigation.

If we consider those proceedings as judicial — the taking of the bond, the administration of the oath, and the decree of the judge appointing her, on her application administratrix, and recognizing her as having given the bond, and determining that the judge had received and approved it, and therefore had authorized and empowered her to perform all acts as administratrix, these three acts performed by the judge, by virtue of his office, seem to answer the question submitted for our decision in the bill of exceptions.

The judge who takes the bond for the faithful administration of a succession, is called upon to act judicially. He, by receiving and approving the bond, determines on the sufficiency of the amount, and the qualifications of residence and solvency of the sureties. On his fiat the obligation entered inte becomes what is denominated in our law, a judicial suretyship. C. C. 3033. The authority for the administratrix to act as such, based upon the preceding fulfillment of the requisites of the law, is a judicial act in every sense of the term. The counsel who argued the case for the defendants, have relied upon the cases of Wells v. Dill, 1 Mart. N. S. 593, and The United States v. Paulding, et al. 4 Cranch, 219, &c.

We do not find that any of those cases relate to a bond of this description, which has been taken officially by a judge at a judicial suretyship. Such may have been the instrument in the first case, that of Wells v. Dill; but the point raised in this case was not even made, and the report of the case is too meagre to authorize the inference drawn by counsel, in favor of the opinion of the district judge in admitting the testimony offered.

Considering the principle elementary, that no parol evidence can be received to impeach or contradict a record of judicial proceedings, it is out of ple.ce to cite authority in support of it. Where would be the use of records if they were subject to be changed by the testimony of witnesses, or dependent on the treacherous memory of man. Deplorable would be the condition of that people, among whom the rights and property of citizens, as confirmed by the decisions of their tribunals, could be overturned by the very individual, who, in his public office and under the sanction of his oath, had pronounced judgment in their favor. De fide et officio judiéis non recipitur qusestio, sed de scientia, sive sit error juris sive facti. Bacon, Maxims, rule 17.

We think the bill of exceptions well taken, and that a grave error was com. mitted by tbe judge in allowing the testimony of the witnesses to go to the jury.

It is, therefore, decreed that, the judgment of the District Court be annuli-ed and reversed, and it is ordered that the plaintiffs, Taylor, Gardiner Co., recover from the defendants, in solido, the sum of $427 55, with interest from the 2d August, 1845, until paid; and that Catharine Howard, widow in community, and tutrix of the minor Carlisle Scotland Huie, recover from said defendants, in solido, the sum of $530 20, with interest from the same date; the defendants paying the costs in both courts.


author: Kino, J.

text:
    Lay v. Boyce, Sheriff.
    In a proceeding, by motion, against a sheriff, under see. 17 of the stat. of 7 April, 1826, to render him liable in the amount for which aJi.fa. was issued, on account of his failure to return the writ within the legal delay, evidence is inadmissible to show that the defendant ■in execution owned property, while the writ was in the hands of the sheriff, which the latter neglected to seize. Such evidence is inadmissible, though the existence of the property be averred in the motion; but it wouldbe proper in an action lor damages.
    'The stat. of 7 April, 1826, s. 17, does not impose upon a sheriff, .the payment of the amount for wh'ieh a fi, fa. was issued, as a penalty for his mere failure to make a return within the legal delay; and when proceeded against under that statute he may show any circumstance which would- excuse a failure to execute or return the writ. Proof that he notified the plaintiff of his inability to find any property, and of the defendant’s refusal to give up any -when demanded,is a sufficient excuse, the plaintiff being thereby as fully notified of the officer’s inability to execute the writ, as he would have 'been by a return to that effect made on .tile writ within the legal delay. The object of -the statute is not to punish the officer, but to afford -a prompt remedy to the creditor for any injury he may sustain.
    •Where in a proceeding against a sheriff under sec. 17 of the stat. of 7 April, 1826, for failing ■to return a Ji.fa. within the legal delay, the writ and the return thereon are offered in evidence by the plaintiff, and there is no averment that the statements in the return are incorrect, they will be considered as true.
    APPEAL from the District Courtof Caldwell, Barry, J.

      Lawson, McGuire and Ray, for the plaintiff.

      Garrett, for the appellant,
    cited Webb v. Kenvp, 2 An. R. 370. Gasquet v. Robins, lb. 410. 4 La. 301. 4 Rob. 40. 2An.R. 656, 657. C. P. 172, 726, 727.
   The judgment of the court was pronounced by

Kino, J.

This proceeding lias been instituted againstthe defendant to render him liable, as sheriff, under the act of 1826 (B. and tí. Dig. p. 435), for the amount specified in an execution placed in his hands, on the ground that he made no effort to execute it, and that he failed to retara the writ on or before the return day. There is a further averment, that the defendant in execution had in his possession, as owner, at the time the writ was in the sheriff’s hands, property sufficient to satisfy it, which the officer failed to seize. The defendant Admits that lie received the writ, and avers that he used due diligence to execute it; that he called on the plaintiff’s attorney to point out property, which the latter neglected todo; and that, being unable to find property of the defendant in execution, the writ was returned. The district judge rendered a judgment in favor of the plaintiff ior the amount of the writ, and the defendant has appealed.

The fieri facias bears date the 11th July, 1845, and was made returnable in seventy days. It was not placed in the sheriff’s hands until the 27th of August, following. The sheriff, in his return, states that, “on the 3d of September, of the same year, he demanded payment of the within execution, of the within named William W. Mitchell, Syc., and he refused to pay the debt or surrender property. I know of no property of said Mitchell. I then called upon plaintiff’s counsel, A. Bonner, to show property, which he failed to do. This execution being out of date, I, therefore, return the execution not satisfied, this 30th day of November, 1845.”

The writ and the return were offered in evidence by the plaintiff. There is no averment in the pleadings that the statements in the return are not in accordance with the facts, and they must be considered as true for the purposes of this investigation. The plaintiff was not a resident of the parish to which the writ was directed, and it is shown that Bonner had the control of its execution.

The claim of the plaintiff reduces itself to an attempt to hold the sheriff liable, for his neglect to make a return within the legal delay. It is true that it is avered in the motion that, the defendant in execution owned property while the writ was in the hands of the officer, which the latter neglected to seize. But the judge refused to admit testimony on this point, on the ground that the plaintiff was availing himself of a summary proceeding, given by the act of 1826, in which the evidence must be confined to the particular violation of the statute complained of. We think that the judge did not err. The evidence sought to be introduced would have been applicable to an action for damages, but not in a proceeding like the present, in which the- inquiry is, whether the officer has incurred the penalties of the act, by violating one of the duties which it imposes, and for which the remedy by motion is provided. • - ■

We have, heretofore, held that, the act of 1826, does not impose upon the sheriff the payment of the amount specified in a writ offieri facias, as a penalty for his mere failure to make a return within the legal delay ;■ that, when he is sought to be réudered liable under that act, he may show any circumstance which would excuse him from a failure to return or execute the writ. Gasquet v. Robins, 2 An. R. 409. Webb, administrator v. Kemp, Ibid. 370.

The sheriff, in the present instance, appears to have acted promptly and with diligence, when the writ first went into his hands, by calling on the debtor to satisfy the demand or surrender property for seizure, and by notifying the plaintiff of his failure of success, and requiring him to point out property. The plaintiff was as fully notified by this call of the officer’s inability to execute the writ, and that it would not be executed unless property was indicated by the plaintiff himself, as though the return of the fact had been made within the delay specified in the writ. With this knowledge, can he, with reason, now complain that the information was notconveyed to him by a return. The statute presupposes that the acts or omissions for which the officer is held liable, have been prejudicial to the plaintiff in execution. It is not to be presumed that, the latter was prejudiced by the failure of the sheriff to advise him in the particular form of a return, of a fact which that officer had previously communicated in another form, in which he is equally required by law to convey it. The policy of the law being, not to punish the officer, but to afford a prompt remedy to the creditor for an injury which he is supposed to have'sustained, the facts of this case, do not, in our opinion, authorize an affirmance of the judgment appealed from.

The judgment of the District Court is, therefore,- reversed, and judgment rendered in favor of the defendant; the plaintiff paying the costs of both courts.


text:
    Copley v. Snow.
    Where a plaintiff, after obtaining judgment, causes a fi. fa. to be issued, and propounds interrogatories to a thirdperson under the stat. of 29 March, 1839, and obtains a judgment against him, in case of an appeal by the defendant from the judgment against the person interrogated, he must be made apartyto the appeal, or it will be dismissed. Beinginierested in the judgment, it can neither bo affirmed nor reversed without giving him an opportunity of being heard,

      * P PEAL from the District Court of Caldwell, Barry, J.

      Copley, plaintiff, j£jl Pro se•

      Purvis, on the same side*

      Garrett, for the appellant.
   The judgment of the court was pronounced by

King, J.

The plaintiff has moved to dismiss this appeal, on the ground, among others, that the appellant has failed to bring before this court all the par-lies interested in the judgment of the court of the first instance. The motion must prevail.

The plaintiff caused an execution to issue on a judgment obtained by him against the defendant, and, while the writ was in the hands of the sheriff, made Trotter a garnishee, under the provisions of the act of 1839. A judgment was rendered against Trotter, fro'm which the defendant Snow has appealed. The garnishee has neither appeared nor been made a party to the appeal. He is interested inthejudgmentofthe inferior court, which this court can neither affirm nor reverse, without giving him an opportunity of being heard. 5 Rob. 324. 12 Rob. 180, 203. Appeal dismissed.


author: Kins, J.

text:
    Succession of Day.
    The only charge to which a succession can be subjected for its complete administration is two and a half percent on the amount of the inventory, after deducting therefrom bad debts. C. C. 1062, 1187, 1188, 1676.
    A curator of a succession, who relinquishes his trust without having completed the administration, hut after selling all the property of the succession, can claim commissions only on the amount ho has received, and on debts which he has made diligent, though unavailing, efforts to collect, hut which he has placed on a condition no longer to require the agency o I his successor, by ascertaining them to he desperate, or otherwise.
    APPEAL from the District Court of Ouachita, Selby, J.

      Morrison and Purvis, for the curator, appellant.

      R. W. Richardson, for the opponent»
   The judgment of the court was pronounced by

Kins, J.

Oliver presented an account of his administration as curator of the succession of Day, in which he states that the inventory of the property of the deceased amounted to $28,054 34, and that the proceeds of this property when sold were $13,710 87, of which he returns $11,784 78, as uncollected, leaving $1,924 38, as the amount collected. He credits himself in his account with $701 35, being commissions at two and a half per cent on the whole amount of the inventory, and with the sumslof $250 and $666 12, paid to an attorney as fees for professional services. Millaudon, a creditor of the succession, opposed these items, and his opposition to the first was sustained by the judge, who reduced the commissions, computing them only on the amount received by the curator, but overruled the opposition to the attorney’s fees; and the curator has appealed. Millaudon asks that the judgment, be amended by rejecting the credits for attorney’s fees, and that, in other respects, it be affirmed. Oliver has withdrawn from the euratorship of the succession. He contends, however, that having sold all the property confided to his administration, and used due diligence to collect the proceeds, he is entitled to receive commissions on the whole amount of the inventory, under article 1062 of (he Code.

It appears to bo admitted thal, all the property invontoriod at $98,054 34, produced when sold less than half that sum. Under what proceedings the sales were made at this reduced price, when compared 'with its appraised value, we are not informed by the record. No irregularity, however, has been complained of in this respect, and we must assume that the sales were legally effected. The curator was compelled to institute suits for the recovery of the purchase price of nearly all the property sold; and those sums, which have not been collected, have either been reduced to judg.ments, or are still in litigation. Article 1062 of the Code gives to the administrator, upon the settlemént of his account, two and a half per cent commissions upon the amount of the inventory, bad debts being first deducted. Articles 1187 and 1188 allowed the curator of a vacant succession, who has only partially administered, and whose term of office is to be extended, or who is to be replaced by another, commissions only on the amount he has received. See also article 1675.

The decisions upon these articles are, in some respects, perhaps not entirely free from conflict, unless it be considered that the legislature intended to establish a distinction between the compensation due to administrators, curators, and executors.

In the case of Smith v. Cheney, 1 Rob. 98, it was held that, an administrator who had sold the property, collected a sufficient amount to pay the debts, and had taken uotes, bearing interest, for the residue of the proceeds, which he returned to the succession, was entitled to full commissions.

In the case of the Succession of Milne, 1 Rob. 401, decided a few months later, the court said : “ This commission is the compensation which the executor is entitled to for administering the whole estate ; he cannot, therefore, begin his administration, by pocketing it; for if he be prevented by death, or otherwise, from completing his administration, it would be absurd to say that he is entitled to the same compensation as if he had completed the work. Nor can it be pretended that, on every mutation of the executorship, the preceding and succeding incumbents aré each entitled to a commission on the whole estate. The compensation due to each incumbent is to be reckoned on the portion of the estate which he administers.”

In the case of Blakey's Succession, 12 Rob. 156, 159, it was held that, an administrator, on showing diligent efforts to collect debts not falling within the denomination of bad debts, is entitled to commissions on those sums, although his efforts may have been ineffectual, and the same doctrine was recognized in the case of the Succession of Johnston, 1 An. 76. But there is no intimation of an opinion in any of those cases, that more than one commission is to be allowed, or that any commission is to.be allowed on uncollected debts, unless those debts be shown to be in a condition which requires no further administration ; but, on the contrary, in the case of Milne's Succession, to which we have referred, the proposition is distinctly negatived.

The Code contemplates, that the only commission to which a succession shall be subjected for its complete administration,- is two and a half per cent on the amount of the inventory, after deducting bad debts. Arts. 1062, 1187, 1188, 1676. We think that it results from the spirit of the decisions to which we have referred, and of our legislation upon this subject, that the curator who relinquishes his trust, without having fully administered, can only claim commissions on the amount which he has received, and upon those sums which he has made diligent, although unavailing, efforts to collect, but which he has placed in a condition no longer to require the agency of his successor, by ascertaining them to be desperate or otherwise. See Projet of amendments to the Civil Code, p. 157. None of the demands returned by the curator in the' present instance having been shown to be in this condition, we think that the district judge did not err, in restricting the commissions to the amount actually received.

The items numbered 1, 2 and 3, in the account of George W- Copley, marked K,-amounting collectively to $421 25, for professional services as an attorny, are not proved. The only testimony in relation to them is that of a witness, who*says that,- “if the services were rendered the charges for the same are reasonable.” This- evidence is clearly not sufficient to authorize the credit. The remaining items of the same account, viz : 4, 5-, and 6, amounting collectively to $242 87, are established by the evidence. The fee of $250 paid by the curator to Copley, for his professional services in conducting the mortuary proceedings, is also shown by the evidence to be reasonable, and was properly allowed as a credit. The fact that Copley was, as surety of Alexander, a debtor of the succession at the time that the curator paid his fees, is not shown in the record. The question of compensation* presented by the counsel of the opposing creditor does not therefore arise.

It is, therefore, ordered that, the judgment of the District Court be amended, by rejecting the items-numbered 1, 2, and 3; in the account of George W. Copley, marked K, amounting collectively to $421 25 ; that said Oliver be discharged on paying the sum of $465 90, the balance appearing to be due by him in his said capacity of curator; and,-in other respects, t-hat said- judgment be affirmed ; the appellant paying the costs of this appeal;-


author: King, J.,

text:
    Farrell v. Austin, Administratrix.
    Where the plaintiff's right in an action on a draft is purchased, pending the litigation, by a third person, the defendant may claim to be released on paying the price of the transfer, with interest from its date. C. C. 2622, 2623.
    Where a plaintiff’s right in an action is purchased pendente Hte, and the purchaser intervenes and is substituted to the original plaintiff, and defendant is informed, for the first time, by the introduction of the act of transfer in evidence on the trial, of the consideration for which the transfer was made, it will not be too late to file an amended answer praying to be released, on paying the price of the transfer, with interest from its date.
    APPEAL from the District Court of Ouachita, Copley, J.

      R. W. Richardson, for the appellant.

      Garrett, for the defendant.
    The amended answer was not too late. Troplong, Vente, nos. 988, 999.
   The judgment of the court was pronounced by

King, J.,

This action was instituted against the administratrix of Hewitt, to recover $900, being the amount of a draft of which Hewitt was the drawer. The answer of the administratrix denies generally the allegations of the petition, admits the genuineness of the signatures to the draft, but denies that the succession of the deceased is in any manner liable for the sum claimed. During the pendency of the action the plaintiff, Farrell, transferred the demand to Frances E. Sewall, who intervened in the suit, and prayed to be substituted as party plaintiff in the cause, and for a judgment in her favor in accordance with the prayer of the original petition. Appended to this petition is the folowingagreement, signed by the counsel of both parties:

“ In .thi-s-canse it is agreed, that the amended petition may be filed by consent, substituting Frances F. Sewall, widow -of Sewall, deceased, late of the firm of Sewall Sf Robinson, and she shall be admitted as plaintiff in the suit, and judgment rendered contradictorily in same manner as with the original plaintiff.”

On the trial, the intervenor introduced in.evidence the act.of transfer to her of the draft in suit, from which it appeared that the price paid for the demand was ¡¡¡>250. The defendant.thereupon presented an amended answer, in which she averred that the right transferred was litigious, and prayed to be permitted to release herself irom the debt, on paying to the intervenor the price of the transfer, with interest from its date. The intervenor objected to the filing of this amended answer, on the ground that it came .too late; and that, by the terms of the agreement in relation to the petition of intervention, the plea was waived and inadmissible. These objections were overruled, and a bill of exceptions taken to the opinion of the judge. A judgment was rendered in favor of the intervenor for §250, with five per cent interest from the date of the transfer ^ from which she has .appealed.

At the date of the .transfer a suit and contestation existed, involving the plaintiff’s right to recover the amount of the draft. The right conveyed was .consequently litigious, .and the defendant could legally claim a release of the succession which she represented, on paying the price of the transfer and interest from date. C. C. arts. 2622, 2623. The defendant’s counsel made no waiver of her privilege to exercise this right, nor could she have made such a relinquishment without express .authority to that effect. It is evident both from tile nature and terms .of the agreement .that, no such abandonment of the defendant’s right entered into the contemplation of the parties. The agreement is silent as to the transfer; the petition of intervention to which it is appended, sets forth no price paid for the demand ; and no fact is disclosed showing that the defendant was, at that time, aware that a full .consideration had not been paid for the draft. The object of counsel appears to have been to accellerate the progress of the cause, and with that view to waive delays which might .otherwise have been insisted upon.

The objection that the plea came too late, is equally untenable. The cause was tried on the same day on which .the intervention was filed and the agreement of counsel in relation to it entered into, and it was not until the act of transfer was introduced in evidence that the defendant appears to have been aware of the price paid for the demand, and that the interests of the succession which she .administered required her .to exercise the right.

Judgment affirmed*


author: Sr.ro eld, J.

text:
    Pickett et al. v. Bates et al.
    Whore evidence has been received without objection, it will he too late, at a subsequent stage of the trial, to object to it as inadmissible.
    The bond of an administrator received by a probate judge of another State, forms a part of the judicial proceedings relating to the administration of the .estate, and is admissible in evidence as part of a transcript of such proceedings.
    Though a transcript of judicial proceedings in another State shows that a Ji. fa. was issued against a party, the.existence of a judgment will not be inferred.

      An attorney at law is authorized to receive partial payments on account of any claim put in bis hands for collection.
    Where an attorney to whom a claim 1ms been intrusted for collection, releases, without autlio- / rity, apart of the debt, in consideration of the payment of the residue, the debtor cannot, on ; the refusal of the creditors to sanction the compromise, reclaim the amount so paid either from the attorney or the creditor. The act of an agent, though unauthorized, is not always wholly void ; it may be good so far as authorized, and void for the rest.
    Where a surety compromises with the creditors, and settles the debt on payment of a part, he cannot recover from his principal the whole amountof the debt. A surety is not permitted to speculate on his principal. The gain on a compromise made by him enures to the benefit of the principal.
    Where a surety has extinguished the claim of the creditor by a compromise, he must establish the terms of the arrangement to entitle him to recover against the principal.
    Sureties are entitled to relief for partial payments made by them. The obligation of the principal towards a surety is not indivisible.
    A judgment against a debtor in another State, is prima facie evidence of the debt against a third person to whom the debtor is alleged to have made a fraudulent and simulated sale, ip an .action .against the latter, ¡n this State, to annul the sale for fraud and simulation. I» devolves on the purchaser to rebut the evidence.
    The prescription established by art. 1989 of the Civil Code does not apply to simulated sales.
    APPEAL, by the defendant Hightower, from a judgment of the District Court of Morehouse, Copley, J.

      Richardson and Sharp, for the plaintiff.

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

Sr.ro eld, J.

The plaintiffs claim from Henry Bales the sum of $1201 75, ns an amount which they have been obliged to pay as his sureties on the bond given by him as adininirtrator of the estate of Philemon Hightower, They also made the defendant’s wife, Charlotte Hightower, and William, S, Hightower, parties defendants; and prayed that a donation made by Bates to his minor child, and a sale made by 14m to W. S. Hightower, might be annulled as fraudulent and simulated.

In the course of the trial the plaintiff offered in evidence a transcript of the record of the probate proceedings in Alabama, which exhibited, among other matters, the appointment of Bates, his official bond, a contestation between him and the heirs, and a judgment against him and in their favor, for a balance of account due by him. To the introduction of this evidence, which had been filed with, and referred to in, the petition, the defendants made no objection at the time; but, a subsequent stage of the trial, the defendants raised the objection “that the bond was no part of the judicial proceedings,” and a copy of it should have been authenticated in a different form. The court refused to act upon the objection, as coming too late. We think the court did not err. In addition to the view taken by the court, it seems to us that it was properly treated as part of the judicial record. The transcript, prepared by the clerk, the keeper of the records of the county court, shows that the bond was the subject of judicial action. There was an order of court that it be received and recorded. Under our own practice a bond filed with the papers and proceedings, of a succession, and accepted by the judge, would be deemed a part of the record. We have no evidence nor argument presented to justify us in supposing that it would be otherwise considered in Alabama. See Taylor v. Jones, ante, p. 619. Sanders v. Dosson, ante 588. Moore v. Louallier, 2 La. 571. An objection has been raised in argument, which has not been noticed in the bill of exceptions, and, perhaps, requires no answer, with regard to the authority of the clerk of the County Court to certify the proceedings of “a Special Orphan’s Court,” as it is termed in the record. But the 'record contains inherent evidence that the County Court judge was ex-officio judge of Probates.

The transcript establishes a personal judgment against Henry Bates, in favor of the heirs of Hightower, and is conclusive against him.

It is said that the record cannot be deemed evidence that, a judgment was rendered against the sureties ; that it shows that n fieri facias was issued against Joseph Bates and Win. It. Pickett, the plaintiffs in this case, as sureties on the bond, but the court cannot presume a judgment because there was an execution. No doubt there is some statutory authority in Alabama, warranting execution, without further decree against the sureties, upon default of the principal in such bonds, established by a return of nulla bona. But, as we have no evidence of the law there, and no similar practice here, we will give the defendant the benefit of his objection. But aside from the transcript, which conclusively establishes the default of the principal, the plaintiffs have satisfactorily shown, by parol evidence, a payment by the sureties. The attorney of record in the litigation, which occurred, as shown by the transcript, between five of the heirs of High-tower and the administrator, proves that, after the return of the fi. fa. against the administrator, he, as attorney of the heirs,' demanded pnyment of Pickett and Joseph Bates, and received it from them. His professional relation to them appears from the record; ns their attorney, he obtained the judgment; and, in that capacity, ho had a right to receive money in payment of the judgment. See Mourain v. Beauvais, 10 La. Langdon v. Pothe, 13 Mart. s. 320. Lewis v. Gumage, 1 Pick. 347. He could recover a payment on account, and was not obliged by his duty to refuse a partial pnyment.

But it is said that the payment was not binding upon the creditors whom the attorney represented, and that evidence should be adduced of their ratification, because the amount received for the three heirs James, William, and Milly Hightower, $450, was less than their share of the judgment, and was receipted for by their attorney as in full satisfaction of their share, which amounted to I $600 87, besides costs. By reason of this compromise, which the attorney had no right to make, it is argued that the judgment was void. It may be conceded I that the compromise would not be binding, but the legal consequence is not as j claimed by the defendants. When an agent does more than he is authorized to do, the act is not always wholly void. In some eases it maybe good for that} which is authorized, and void for the rest. Here the boundaries between the j excess and the rightful execution of the authority are clearly distinguishable, and 3 the subject matter is divisible. It was the duty of the debtor to pay the debt; and having paid a part of what he owed, upon a supposed release for the residue, which was unauthorized, he could not reclaim the money either from the attorney or the principal. .

The next enquiry is whether, supposing the claim of the three heirs to be extiingished in full for the sum of $600 87, the sureties can now claim that amount from the defaulting administrator. They contend that they are subrogated to the rights of the three heirs for the total amount of their claim, and 'stand in their place against Henry Bales, the principal debtor. Their claim, to that extent, is unfounded. The surety is not permitted to speculate upon his principal. The contract is not one of profit, but indemnity. His remedy is for what he has paid. The gain of a compromise enures to the benefit of his principal.

The judgment bore interest by the laws of Alabama, where the bond was executed, at eight per cent; and the sureties are entitled to recover at that rate, form the day of pnyment.

The sureties also claim the amount of the shares of two other heirs, James and Mary Hightower. It would seem that, by some arrangement, the sureties have extinguished the claim of those heirs. The testimony by which it was attempted to prove the .arrangement, was objected to ; but we do not think itneces sary to decide upon its admissibility. The terms of the settlement are not proved ; and, from the circumstances, the inference is strong that the sureties made a compromise; but for how much does not appear. To .entitle themselves to relief, they should not present a doubtful case. That portion of their claim must at present be rejected. Sureties have a right to relief for partial payments. The obligation of the principal to the surety is not indivisible. See Newman v. Goza, 2 An. 645.

Noattempfc bas been made in argument to impugn the correctness of the vordiet and judgment, annulling the donation by Bates to his minor child.

No objection was made by Hightower to the introduction in evidence of the transcript of the record of the County Court in Alabama, except, those already noticed ; but, when the cause was submitted to the jury, he asked the court to charge the jury that the judgment against Henry Bates was no evidence against Hightower, and that it was incumbent on the plaintiff to make out a clear case of indebtedness against Henry Bates by other legal evidence besides the record, in order to recover against Hightower. The court refused this instruction, charging tho jury that the judgment was prima facie, evidence as against High-tower, and it devolved upon Hightower to rebut that prima facie showing. In this charge there was no error to the prejudice of Hightower.

The indebtedness of Bates, to the extent stated, is amply shown by the documents and parol evidence. The issue of simulation was distinctly made by the pleadings. The verdict of the jury is in favor of the plaintiffs ; and, under the evidence and the opinion of the judge refusing a new trial, we do not think it should be disturbed. The prescription established by article 1989 does not apply to simulated sales. See the case of Cammack v Watson, 1 An. 132.

II is, therefore, decreed that, the judgment of the court below be so far only changed, as to reduce the amountto be recovered by the plaintiffs from the sura of §750 to the sum of §450, (being the amount paid by the plaintiffs to James, JFilliam and Milly Hightower,) with interest thereon at the rate of eight per cen per annum from 25 March, 1846, until paid ; that the claim of the plaintiffs, if any they have, by reason of any monies paid to Jane JS. Hightower Graham, and Man/ Hightower Langly, by the said plaintiffs, as sureties of Henry Bales, administrator of Philemon Hightower, be dismissed, without prejudice; that, so ebaugod, the judgment of the court be affirmed; the plaintiffs paying the costs of this appeal.


author: Slidell, JT.

text:
    The Citizens Bank v. Bry et al.
    The statementof a notary of thecity of New Orleans, made onaprotest and certificate of notice, that anote was presented and payment demanded, and notice to the endorsers mailed, by Y. D., “ his lawful and duly sworn deputy,” is sufficient evidence oí the ap. pointment and oath of tho deputy, though the appointment and qualification of the deputy ho expressly denied. No proof aliunde is required. Stat. 14 March, 1844. The stat. of 1S44 authorizes a notary in New Orleans to act by deputy, and to certify to what is by such deputy.

      The acts of an officer defacto, in actual exercise of the ordinary functions of hie office, are valid as to third persons who may be interested in such acts.
    The stat. of 14 March, 1844, authorizes notaries in the city of New prieans to employ deputies to make presentments, and demands of payment, of bills and notes. The words of the statute — “in the making of protests," must be understood in an enlarged and popular sense, as comprehending whatever is necessary to the validity of a protest.
    Where a deputy, appointed by a notary in the city of New Orleans, under the stat. of 14 March, 1844. makes demand of payment of a bill or note, it is not necessary that the deputy should certify the official act. The' notary may certify the acts of his deputy, as well as his own.
    APPEAL from the District Court of Ouachita, Copley, J.

      Richardson and Sharp, for the plaintiffs,

      Garrett, McGuire and Ray, for the appellants.
   The judgment of the court was-pronounced by

Slidell, JT.

From a judgment against the endorsers of a promissory note, they have appealed. Th'e correctness of the judgment depends upon the question, whether the demand, protest and notice have been proved by competent and sufficient evidence. To prove those facts, the plaintiffs offered a certified copies of the notarial protest and certificates of notice. These copies are signed by the notary, and bear his official seal. The protest states that, “I, Charles Boudousquie, notary, &c. &c., through Victor JDemoúrelli, my lawful and duly sworn deputy, presented said note to, and demanded payment thereof from, the book-keeper of the Citizens’ Bank of Louisiana, where the same is made payable, and was by him answered that no funds had been provided there to pay said note. Whereupon I, the said notary, did protest, &c. in the presence of, &c.” The original is signed by two witnesses, by V. JDcmoúretti, deputy, and by the notary. The record of notice is in like form, the notary certifying that the notice was mailed by the same deputy. It was signed by the witnesses, deputy, and notary.

The defendants objected to the introduction of this evidence upon various grounds, which will be noticed; and, as appears by the bill of exceptions, denied, when the protest was offered in evidence, that the deputy was a deputy legally appointed and sworn according to law.

The following points are now presented by the defendants:

“ 1st. There is no evidence, except the statement of the notary, that this person was his deputy, duly and legally appointed and sworn; and it was expressly denied that he was legally appointed and sworn according to law. Acts of 1844, p. 26. When the authority of a deputy is denied, it must be proved.

2d. The act of 1844 does not authorize the deputy to make demand; it only authorizes him to assist “ in the making of protests and we are aided in ascertaining the meaning of the word “ making” by reference to the french text, ‘ la redaction des proléts.'

“ 3d. If the deputy was authorized to make the demand, he should have made the protest and certified to his official act, and not the notary. Where the deputy acts he must certify for himself, and not his principal for him. The notary can only certify to his own official acts.”

For the better consideration of these objections, a brief notice is necessary of the legislation on this subject, and the intention of the Taw-giver.

In aid of commerce the rules of evidence had been so far relaxed as to allow a protest of a foreign bill of exchange, apparently under the seal of a notary public, and made abroad, to prove itself, and establish the dishonor of the bill. But’a notarial protest was not admitted even in the case of a foreign bill, where the protest was made in the country in which it was offered. See Chesma v. Noyes, 4 Campbell, 129. As commerce increased in this country, and the great mass of mercantile transactions came to be represented by bills of exchange and promissory notes, many of the States of this Union, and our own among others, for the purpose of facilitating commerce by rendering the remedy upon bills and notes,convenient and safe, passed statutes clothing notaries public with authority to demand and give notices of protest, and making their notarial records of their acts, and certified copies of them, authentic evidence. With this intention, and to this effect, are the statutes of 1821 and 1827. But it was found that these statutes were sometimes inadequate to accomplish the end proposed. It became necessary to relieve notaries from the great pressure of business, which, at certain seasons of the year, takes place in a great commercial city, where the collection of mercantile paper is accomplished almost entirely through the agency of a few banks. To a bank’s regularly employed notary, selected for his experience and fidelity, it would sometimes be a physical impossibility to demand and deliver notices in all cases personally.- Hence, as we have no doubt, the statute of 1844 (Acts, p. 26) was enacted, which is in these words: “ That it shall be lawful for each and every notary public in New Orleans to appoint one or more deputies to assist him in the-makingof protests, and delivery of notices of protests of bills of exchange and promissory notes; provided that each notary shall be personally responsible for the acts of each deputy employed by him; and provided that each deputy shall take an oath faithfully to perform his duties as such, before the judge of the parish in which he may be appointed, and provided the certificate of notice or protest shall state by whom made or served.”

The former statutes were intended to establish a convenient and permanent means of proof. The statute of 1844 was not intended to impair the beneficial provisions of the antecedent laws; but, preserving them, to facilitate the notaries in the performance of their duties. This results not only from sound principles of interpretation, but from the terms of the statute. “ The certificate of the notice of protest shall state by whom made or served.” Why direct the notary as to the form of the certificate, if when made it would not be used ?

These views furnish an easy solution of nearly all the objections made by counsel, which we will now proceed to examine in their order.

I. If, when the notary has acted through a deputy, the creditor was bound, in addition to the authentic copy of the notarial record, to adduce proof aliunde of the appointment and oath of the deputy, the statute would be made to defeat it on motive; and would be turned to the prejudice of the banks, (in whose welfare the State has a deep interest,) and of the commercial community, in whose favor it was made.

Again: the statute designates no particular manner or form for the appointment of the deputy, nor does it prescribe, lotidem verbis, any particular mode of proving the fact. The appointing power is lodged in the notary, a public officer. We are bound to notice his, Boudousquie’s, official character as an officer of the State, and his official certificate that JDemo&retti was his official deputy appears to us as clearly prima facie evidence, especially when that certificate relates to acts performed, under the sanction of law, by the deputy upon the day of the certificate, and in the immediate gestión of the notary’s duty, which is here brought into question. Besides, the statute itself not only authorizes the notary to act through a deputy, but expressly contemplates his authority to certify to what is done — “ shall stale by whom made or served.” In stating that tlie deputy was employed to do the act, which the statute expressly authorizes, the notary has furnished authentic evidence that, on that day Domoürétti was de facto his deputy; and even if he had not taken the oath prescribed by the statute, and if we are to regard him, as counsel seem to insist, in the light of a public officer, the objection is repelled by the Well settled rule that, the acts of an officer dé facto, thus having color of title, in the exercise of the ordinary functions of his office, are valid in respect to the rights of third persons, who may be interested in such acts. See Bucknam v. Ruggles, 15 Mass. 183. Mason v. Dillingham, Ib. 171. McInstry v. Tanner, 9 John. 135.

II. The second objection does not appear to hav.e; been made in the court below, and is not covered by the bill of exceptions. But, as the point has been fully argued at bar, we will express our opinion with regard to it. The language of the statute is--“ to assist him in the making of protests.” We have already considered the motive of the law, and the necessity which prompted its enactment. Every one knows that one of the most arduous duties of the notary is making the demand. The giving notices frequently involves only the labor of writing and addressing a notice, and dropping it into the post-office. The former duty is limited to the business hours of a single day; the latter may be done more at leisure, on the next day,or in time for the next post. The expression “makingof protests,”.if restricted to the mere preparation of the notarial act of protest, Would render the legislation, in that respect, idle and Vain. For the notary had before the statute the right of employing as many clerks as he chose, to do the manual labor of writing the protest. The expression must be understood in its enlarged and popular sense, comprehending that which is requisite for the validity of a protest, to wit, a presentment and demand of payment. Again: that the deputy may be employed to make the demand, is evident from other expressions of the statute — “the certificate of notice or protest shall state by whom made or served.”' It would be unreasonable to sacrifice all other considerations to the language of the french text’ “ la redaction des protíts.”

III. If we were to construe the statute as requiring the deputy’s certificate, and disallowing that of the notary, when the act was done by the deputy, the clear intention of the law giver already noticed Would be defeated. Instead of the convenient mode of proof intended to be permitted. in aid of commerce, the holder of commercial paper Would be driven to the expense and delay of a commission enforcing the personal attendance of the deputy at the trial. Suppose this certificate of protest and notice had been presented under the signature of the deputy without the signature of the notary — the objection would have been made that, the court could not take judicial notice of the deputy’s capacity. In point of fact, however, the objection is partially untenable on another ground. The deputy did sign the original protest and certificate of notice; and the notary certifies a copy of his official record, he being the proper person to do so. „ Judgment affirmed.


author: Eustis, Cl J;

text:
    Terrill et al. v. Van Bibber.
    A party cannot recover in an action instituted here on a judgment rendered in another State, unless the transcript shows the foreign proceedings to have been clothed with the forms necessary to'a valid judgment in the place where it was rendered. Thus where such a jndgment'purports to have been rendered by confession, but it is left doubtful whether the confession was made by the attorney, or by the defendant, and there-is no writ, citation, declaration or complaint upon which the court'was to pronounce, or the defendant confess, no effect can be given to the judgment hero.
    APPEAL from- the District Court of Caddo, Taylor, J.

      APPEALCrain and Jones, for the plaintiffs.

      Lawson, for the appellant.
   The- judgment of the court was pronounced by

Eustis, Cl J;

This action is brought on a judgment alleged to have been rendered on confession, in the Circuit Court for Mobile county, in the year 1840, against one of the defendants, Henry Van Bibber, for the sum of $1875, .and costs, subject to a credit of $50". There was judgment rendered, after a verdict, for the plaintiff, and the-defendant has appealed.

The transcript of the record on which the plaintiff has brought his action contains the following entries: “Pleas before the Hon. B. F. Porter, judge of the 10th judicial Circuit Court of the State of Alabama, at a term thereof began-and held in and for the county of- Mobile, on the third monday of April, 1-840.

"And on the 29th day of April, 1840; being a day of said spring term, 1840. The following judgment was entered up. to wit:

“Andrew J. Terrill and Thomas P. Mitchell v. Andrew J. Terrill. This day came the parties by their attornies, and the said defendant confesses judgment. Judgment in favor of the said plaintiff, for the sum of $1875. It is therefore considered by the court that the plaintiff’s recover against the said defendant, the said sum of $1875, the amount confessed as aforesaid, together with their costs, by thenrabout suit, in this behalf expended.

“And on the 29th of October, 1843, the following judgment, nunc pro tunc, was, on a motion before the court, entered up, to wit: John Bragg, judge presiding.

Andrew J. Terrill and Thomas P. Mitchell v. Henry Van Bibber. This day, the parties by their attornies, and the said defendant confesses judgment in favor of said plaintiff in the sum of $1875. It is therefore considered by the court that the plaintiffs recover against the defendant, Henry Van Bibber, the sum of $1875, the amount confessed aforesaid, together with the costs in this behalf expended; and this judgment is entered as of the 29th day of April, 1840. It appearing to the satisfaction of the court, that there was a clerical error in the entry of the former judgment.”

A judgment is considered by the courts of common law, to be, the sentence of the law pronounced by the court upon the matter contained in the record. A judgment by confession is rendered when, instead of entering a plea, the defendant chooses to confess the action; or, after pleading, he does at any time before trial, both confess the action and withdraw his plea or other allegations: the j udgment against him in these two cases is called a judgment by confession, or by confession relicta verifications. Stephens onPleading, 130. Bouvier’s Law Dictionary and Jacobs’ Diet, verbo Judgment. Admitting-that we are bound to give full faith and credit'to the judicial proceedings of other States, it would lead to the most dangerous consequences, if, before we give effect to judgments rendered in other States, we did not require that they should be clothed-with those forms which are necessary for their validity. We have not been favored with the decision of any court in Alabama, in which a decree of a court of,a character which this record discloses, has ever been recognized as .a final judgment, which would be admitted .as the basis ,of an action -against the defendant.

Overlooking the discrepancy in the names of the parties appearing as defendant, the distance of time — three years and upwards before the .error was corrected, which there is nothing but the above entries in the record’to explain, we are bound to notice a defect which appears to us.to be fatal.

There is nothing,established by the .record except the identity of parties and the acknowledgment of .the debt, and it is left houblful whether it was made by the attorney, who is-not named, or the defendant himself.

There is with the judgment no writ, no citation, no declaration, no complaint, which the .court was to pronounce upon, or the defendant confess. It would not give him that protection, which a party to judicial proceedings has a right to have secured to him on satisfying the judgmehtof the court.

Called upon as we are, to pass upon the judicial proceedings of other States, without having the benefit often times of authorities'as to the different points raised, we feel bound to stand by the ancient land marks of the law, and to recognize as final judgments only those which are.clothed with the forms which the law itself has required them to be invested with, for the security of parties, and the regular and efficient administration of justice.

We do not feel ourselves-authorized., in considering the instrument offered in evidence as containing a judgment under the 'laws of die State in which it was rendered, as we are at present advised.

The judgment of the District Court is, therefore, .reversed ; and judgment is rendered against the plaintiffs, as in .case of non-suit, with costs in both courts..


author: King, J.

text:
    Miles v. Craig.
    ¡Police juries are authorized to establish ferries, and to annex -penalties to violations of the exolnsive privileges they may grant to the lessees of such ferries. Stats. 25 March, 1813 s. 5 ; 24 February, 1843, ss. 17,18. Bat the statutes granting such powers mnstbe strictly construed, and the exercise of the powers conferred limited .to the precise terms of the grant. Where a statute empowers a police jury to declare .the penalties for violations Of ■the rights to ferries which it may accord, hut confers no authority on the police jury to dele, gate to individuals, to whom such ferries maybe leased, the right to enforce those .penalties in civil actions, in their own names, the .authority will he presumed to have been inten. tionally withheld. The jury alone, in their own name, can enforce.the penalty; 'the lessee of a ferry, in such a case, has no remedy for a violation of his privileges, but by an action for damages and an injunction.
    APPEAL from the District Count of Bossier, Olcoll, J,
    Lawson, for the appellant,
    cited Greiner’s Dig. art. 2619. '3 La. 94. 16 La. 296.

      Spoftífrd, for the defendant.
   The judgment of the court was pronounced by

King, J.

Tho act of 24 February, 1843, (Acts p. 19, ss. 17, 18) creating the parish of Bossier, confers upon the police jury of that parish the exclusive power of establishing ferries within its limits, .and grants it the further authority to declare, “ the penalties for all violations of the privileges of ferry which they may award.” Under the authority of this act, the j ury established a ferry across Benoist’s bayou, which was leased to the plaintiff. Subsequently an ordinance was passed, prohibiting any person from putting a new ferry, or keeping a free ferry, on any of the bayous or lakes in the parish, within one mile of any ferry established by the police jury, under the penalty of $50 for each day that such ferry should be kept. The ordinance further declares that, the lessees of public ferries shall be entitled to the penalties incurred for the violation of their rights. The plaintiff has instituted this action to recover a large amount of fines incurred for alleged violations of his exclusive privilege by the defendant, and to enjoin the latterfrom further interfering with his rights as lessee of the ferry. The defendant, in his answer, denies the power of the jury to establish ferries, or to declare penalties for violations of such privileges, or to confer upon tho lessees the right of enforcing such penalties. The judgment of the District Court rejected the plaintiff’s demand, and dissolved the injunction ; and he has appealed.

It is shown that the defendant kept a ferry boat on Benoist's bayou for his private use, as is permitted by the ordinance, but in which he also crossed his acquaintances free of charge; that it was within less than a mile of the ferry kept by the plaintiff' under his lease from the police jury; and that defendant owns the iand on both sides of the stream, at the point of his crossing.

Of the right of the police jury to establish ferries, and to annex penalties to the violation of the exclusive privileges which they may grant to the lessees of such ferries, no reasonable doubt can be entertained. This right exists not only under the act of 1843, but also underthe laws in foree previous to its enactment. B. and C.’s Dig. p. 640, s. 5. But while the State may delegate to corporations a part of its authority to declare penalties, as has been done in the present instance, such statutes will be strictly construed, and the exercise of the powers conferred, limited to the precise terms of the legislative grant. The only .authority given to the police jury of Bossier, by the statute to which we have been referred, is to declare the penalties to be incurred for violating rights of ferry, which they may accord. This power implies, necessarily, that of enforcing such penalties. But these acts confer no authority on the jury to delegate to individuals the right of enforcing these penalties, in civil actions, in their own names ; and, in the absence of such express grant, it will be deemed to have been intentionally withheld. Under the authority granted by the legislature, the jury alone, in their own name, could have proceeded to enforce the penalty alleged to have been incurred by the defendant. Wilcock on Corporations, 374, (Law Library, vol. 14.) The only civil remedies of the plaintiff were, an action .of damages, and an injunction. To the latter he had recourse, and, under the evidence, w.e think that it was necessary for the protection of his ferry privileges, and that it was improperly dissolved.

It is, therefore, ordered that, so much of the judgment of the District Court as dissolved the injunction issued jn this case be reversed, and that said injunction bo reinstated and made perpetual. In other respects the judgment is affirmed ; the defendant paying tho costs of both .courts,


text:
    Scott et al. v. Bowles.
    Slaves, being immovables, a plaintiff may institute an action fot their recovery either in the parish in which they actually are, or in that of the domicil of the defendant. The fact of their belonging to a succession does not exempt the representative of it from the operation of this rule. C. P. 163,983.
    A petitory action must be instituted against the person in actual possession of the property claimed, who, if he disclaim the ownership, must disclose the name and residence of the owner, when the action should not be dismissed, but the plaintiff should be allowed to cite the real owner. C.P. 43.
    APPEAL from the District Court of Bossier, Olcott, J.
    Lawson, for the appellants.

      Gilbert and Landrum, for the defendant.
   The judgment of the court was pronounced by

King, J.

This is a petitory action, instituted by the plaintiffs in the parish of Bossier, against the defendant, to recover a number of slaves, to which they assert title, and $800 for their hire. The defendant excepted to answering to the petition, averring that he had no title to, or possession of, the slaves claimed in the petition, in himself; that he possessed them as administrator of the succession of Seth Sheldon, deceased, which was opened in the parish of Caddo, where Sheldon had his domicil, and where the defendant resided. He denied the jurisdiction of the court, and prayed that the suit might be dismissed. The evidence established the facts as alleged in the exception ; and further, that the slaves claimed were in the parish of Bossier, on a plantation belonging to Sheldon’s succession, and had there been inventoried. The district judge dismissed the action, and the plaintiffs have appealed.

Slaves, being immovables by the operation of law, the plaintiffs had their election, to institute an action for their recovery either in the parish where the property was situated, or at the domicil of the defendant. The fact that they belong to á succession does not exempt the representative'of the succession from the operation of this rule. C. P. arts. 163, 983. 11 Rob. 389. 4 La. 240.

This, being a petitory action, the plaintiffs were required, by express legislation, to institute it against the person inactual possession of the property claimed. If the party thus sued disclaim ownership, he must disclose the name and residence of the owner, who is to be made a party to the suit. C. P. art. 43. The court should have considered the .exception of the defendant only as a disclaimer of ownership or possession in his individual right, and a disclosure of the true character of his possession, and have permitted the plaintiffs to cite the defendant and his co-administrators, in their representative capacities, to defend the action.

The judgment of the District Court is, therefore, reversed, and the cause remanded tobe proceeded with according to law; the appellee paying the costs of this appeal.-