author:
Spofford, J.
     Meebiok, 0. J., Buchanan, J.,

text:
    William M. Story v. G. F. Jones et al.
    A judgment by default is properly rendered against tbe defendant in an attachment suit, where the curator ad hoc, after exceptions filed by him have been overruled, fails to filo an answer.
    The fact that no answer was filod by tho curator ad hoc will not vitiate tho subsequent proceedings, and tho final judgment rondorod on such default cannot be annulled upon tho same allegations that-wore passed upon by the exceptions filed by tho curator ad hoc, when moro than two years had elapsed from tho rendition of the judgment.
    When it appears that there was sufficient time for tho curator ad hoc to havo corresponded with the absentee, if ho was able to.ascertain his post-office, it will bo presumod that ho did his duty in this respect.
    PPEAL from tlie District Court of the Parish of Madison, Farrar, J.

      Harrison <& Sawyer, for plaintiff and appellant.
   Spofford, J.

The object of this suit is to annul a judgment rendered in the attachment case of Jones v. Story, in the District Court of Madison, and thus to set aside a Sheriff’s sale of the property attached.

The judgment sought to be overruled was rendered on the 1st of May, 1852, for the sum demanded, to wit, $168, with five per cent, interest from the 9th of May, 1851, and costs.

No appeal could lie from it, because the sum, if disputed, was so small.

It might be questioned whether this court has jurisdiction of a suit to annul a judgment from which no appeal could lie.

But if the original judgment can be examined by us as being the basis of the Sheriff’s sale, which also is sought to be annulled, then we think it clear that there was no absolute nullity in the proceedings which resulted in the judgment.

The defendant was an absentee; he had land in the parish of Madison; he was brought into court by an attachment of the land, which was put under the control of a keeper, and also by a constructive citation, that is, by affixing copies of the citation and writs of attachment to the court-house door, and by the appointment of' an attorney of the court as curator ad' hoc, who accepted the appointment and acted under it, as appears of record. A valid judgment, binding at least in rem, that is upon the property attached, was the result of these proceedings.

In this suit, the defendant in the attachment case seeks to set aside the judgment therein rendered, upon two allegations which were passed upon when raised by exceptions filed by the curator ad hoc; these exceptions, even if true, having been overruled, are now insufficient to strike the whole proceedings with nullity, i. e., that the person who made the affidavit as agent was really not the agent, and that the plaintiff was not absent at the time his pretended agent acted for him.

The only other objections urged against the former judgment are that the curator ad hoc did not correspond with the absent party, and that there was no answer filed.

Upon the subject of a correspondence between the curator and the absentee, there is no evidence ; it is presumed that the curator did his duty in this respect, if he was able to ascertain the post-office of the party whom be was appointed to represent. Tbe case was delayed sufficiently long for that purpose; besides» the plaintiff does not suggest that be lost any means of defence, or that be bad any to communicate to tbe attorney ad hoc.

Tbe fact that tbe curator ad hoc, after bis exceptions were overruled, filedjbo answer, does not vitiate the proceeding's ; ■ he probably thought it wise to file none, as tbe suit was upon a promissory note, and no defence is even now suggested by tbe maker as possible to have been pleaded against it. If the curator did not wish to admit tbe signature, be was not bound to invent a fictitious de-fence.

Tbe Code of Practice required him not to “ file an answer,” but to “ defend tbe suita suit may sometimes be better defended by not filing an answer than by making a false one.

Tbe absentee, if be was aggrieved by the judgment, bad a remedy which is now barred by lapse of time; and the judgment complained of cannot be opened or annulled on any such grounds as were set up in this petition filed more than two years after its rendition.

“ Tbe absent debtor, against whom judgment has been so rendered, (i. e. “ where attachment is demanded after answer filed, or if the defendant has failed to answer,’’ C. P. 265,) “ may, within two years after such judgment, obtain tbe reversal of tbe same, if be prove that tbe distance at which he lived from tbe place where tbe attachment was obtained, has prevented bis being apprised of the proceedings bad against him, and that tbe plaintiff has availed himself of his absence to obtain payment of a debt, either already paid in totality, or partly discharged, or which did not exist.” C. P. 267.

Under tbe bead of “ rescission of judgments,” tbe Code of Practice also provides, that a judgment may be reversed, if it has been rendered on an attachment obtained against a person absent, and who bad no knowledge of the action having been brought against him; if such person show that be was not indebted either for tbe whole, or for part of tbe same, for which tbe judgment was obtained and bis property sold. But this action shall be prescribed after two years have elapsed from tbe date of tbe judgment.” O. P. 614.

No radical nullity in tbe Sheriff’s sale which followed tbe judgment has been alleged or proved.

Judgment affirmed.

Meebiok, 0. J.,

concurring. The decree in this case produces a great hardship upon the plaintiff. It is with reluctance that I yield my assent, and only do so because compelled, as I conceive by the clear provisions of tbe law.

I think tbe decree in tbe proceedings in monition was a final bar to all further claims on tbe part of tbe plaintiff.

Buchanan, J.,

dissenting. Tbe defendant Jones, a resident of Tennessee, being tbe bolder of a note of the plaintiff, a resident of California, for the sum oí one hundred and sixty-eight dollars, brought suit by attachment in the District Court of Madison parish, Louisiana, and attached the interest of plaintiff, being an undivided half, in twenty-five distinct lots and parcels of land, owned by plaintiff jointly with his brother, Thomas M. Story, and containing, in the aggregate, nineteen hundred and fifty acres; all tbe said tracts being described in tbe return of tbe attachment, by section, township and range. A curator ad hoc was appointed by tbe court to represent the plaintiff, defendant in said attachment. Tbe attorney thus appointed not filing an answer, a judgment by default was rendered, which was made final on the 1st of May, 1852, for the said sum of one hundred and sixty-eight dollars, interest and costs ; “ and that the land attached be sold in due course of law.” Upon this judgment a writ in the nature of a renditioni exponas was issued, commanding the Sheriff to sell, not the undivided half interest of William M. Story in the land as attached, but the whole of the twenty-five lots and parcels of land, by their description of section, &c.

The land thus seized, was appraised by appraisers appointed by the Sheriff, at five dollars per acre cash, and was adjudicated, in block, at the second crying, to James J. Amonett and Isaac Owen, for two hundred and fifteen dollars and ninety-three cents, being the exact amount of judgment and costs, at twelve month’s credit. This Sheriff’s sale was made in October, 1852. In March, 1853, Amo-nett and Owen sued out a monition under the Act of 1834, which was homolo-gated on the 21st of April, 1853; and on the 16th of May, 1853, Amonett conveyed to Owen his interest in the land so purchased by them jointly at Sheriff’s sale, in the form of a quit claim, for the sum of eleven hundred and ten dollars, “ without any warranty or recourse whatever against him, the said Amonett; the said Owen being acquainted with the nature and title of the said described lands declares that he accepts this transfer at his own risk and responsibility.”

It should be observed that James J. Amonett and Isaac Owen signed Jones’ petition, as his attorney-at-law, and Isaac Owen made the affidavit for the attachment, as the attorney in fact of Jones. Neither Amonett and Owen jointly, nor Owen individually, appear to have taken actual possession of the land, which is proved to have been occupied and cultivated by one James W. Wiley, from 1850 to 1855, that is to say, the cleared portion of the land, being some two or three hundred acres.

Plaintiff brings this action to have the judgment of Jones against him, and the sales by the Sheriff to Amonett and Owen, and by Amonett to Owen, declared null; and for general relief in the premises.

The defendant Jones pleads prescription ; and the defendant Owen pleads the judgment upon his monition.

This suit was instituted the 1st of December, 1854, two years and seven months after the rendition of the judgment in favor of Jones against Story. But Art. 612 of the Code of Practice says, that the action of nullity of a judgment rendered against a party who has not been cited, has no limitation, unless the party was present in-the parish, and yet suffered the judgment to be executed, without opposing the same.

And as to the plea of monition, the 8th section of the Monition Act of 1834, (Bullard & Curry, page 586,) says, that the Act shall not be taken to render valid any sale made in virtue of a judgment, when the party cast was not duly cited to make defence.

William M. Story was not cited in the suit of Jones v. Story. An attachment of his property was obtained upon the oath of the attorney in fact of the plaintiff in that suit, and one of the defendants in this, Isaac Owen, that he resided out of the State of Louisiana, (as he did in fact,) the citation was returned served, by posting a certified copy of the same on the court-house door in the town of Richmond, La. William M. Story was, therefore, only in court by his property, and this case is, consequently, within the letter of the exception expressed in the 612th Art. of the Code of Practice, and in the 8th section of the monition law.

There is also, as I conceive, a radical nullity in the so called judgment in the case of Jones v. Story, which is of such a nature that it would not require to be urged in a direct action to annul the judgment, but might be successfully urged as matter of objection to it, if offered as evidence of a right or title in the party who obtained that judgment.

As already mentioned, no answer was filed in the suit of Jones v. Story by the curator ad hoc appointed to represent the absent defendant. A default was entered up, in the following words : “ The defendant having failed to appear cither in person or by advocate, after the delays prescribed by law, judgment by default is rendered against him.” And the final judgment confirming the default, reads as follows : “ By reason of the law and the evidence being in favor of the plaintiff and against the defendant, and the further reason of the default not being set aside, it is, therefore, ordered,” &c. The record shows that the curator ad hoc had filed and argued a motion to dissolve the attachment, on formal grounds ; which motion being overruled, he made no further appearance in the cause. He did not resign his appointment; neither did he carry it out by pleading to the action. Was a judgment by default admissible under the circumstances ?

This point, upon which the plaintiff’s case seems to me to turn, is one of great importance, upon which I have 'found no precedent; which is now presented to us directly for decision, and which comes recommended to our careful consideration by the extraordinary equities of plaintiff’s case.

In approaching it, my attention is first arrested by the peculiarity of the practice which is established by law in Louisiana, in the matter of bringing absentees into court. In every other State, as far as my information extends, the absentee who is sued, is notified by advertisements inserted in the newspapers. In Louisiana alone the court appoints cousel to represent the absentee in the suit under the name of curator ad hoc, or ad litem. The object of the appointment of a curator ad hoc to an absent defendant in an attachment suit is, in the words of Article 260 of the Code of Practice, to represent him and to-defend the suit. The court said, in Brown v. Ferguson, 4 La. 259, that the appointment of a curator ad hoc to an absent defendant, supplies the place of citation. But the object of this legal fiction fails, if the silence of the curator ad hoc is to be construed as a defence. The defendant personally cited, may, if he so choose, say nothing ; not so the curator ad hoc. He is the officer of the court and of the law, and must defend the action. In the cases of Stockton v. Hasluck, 10 Mart. 474 ; Edmonson v. Alabama Railroad, 13 La. 283 ; Collins v. Pease, 17 La. 117 ; Krautler v. Bank United States, 12 Rob. 461 ; and Clacor v. Lane, 5 An. 499 — it was hold that a curator ad hoc to an absent defendant, had no right to waive any de-fence, even of form.

This case seems even stronger than those quoted; for here the case was proved up ex parte, upon a constructive waiver of all defence, in the same manner as if citation had been personally served on defendant. I cannot find any warrant in law for this proceeding, which appears to us, on the contrary, totally inconsistent with the reason and theory of our peculiar practice in such cases.

The silence of the curator ad hoc could not constitute the tacit joinder of issue spoken of in Article 360 of the Code of Practice; for the reason given by the legislator in that Article, does not and cannot apply to this case. That Article reads as follows:

“ When the defendant suffers judgment by default to be taken against him, the issue is joined tacitly; because said defendant is presumed, by his silence, to have confessed the justice of his adversary’s demand; therefore, the defendant is allowed to proceed with his process, in order to have the judgment confirmed.”

Now, it is a principle sanctioned by many decisions, that every law empowering courts to decide upon the rights of absentees, must be strictly construed, and the formalities prescribed exactly followed. Hennen’s Digest, verbo Absentee, No. 1.

In numerous cases collected in the same title of Hennen’s Digest, No. 23, it is held, that a curator ad hoc cannot consent to any judgment being rendered against the party whom he has been appointed to represent. It seems scarcely necessary to assert, that he cannot do indirectly that which he is not allowed to do directly. Yet such would be the effect of construing his silence into a proper foundation for a judgment by default.

I, therefore, regard the judgment by default in question, as an absolute nullity, conferring no right upon the defendants herein, and not cured by the judgment of monition.

In answer to the objection that the suit of Jones v. Story involved an amount less than three hundred dollars, and, therefore, could not have been the subject of an appeal to this court, I would observe, that the principal object of the present action, is to annul a Sheriff’s sale of lands proved to be worth more than ten thousand dollars ; and that nullities apparent in the judgment under which that Sheriff’s sale was made, and properly examinable, for the purpose of passing upon the validity of the sale — at least, as between the parties to this record, who were all parties or privies to the said judgment.

I am of opinion that the judgment appealed from ought to be reversed, and that the Sheriff’s sale should be annulled.

Re-hearing refused.

      This decision was pronounced by Judge Spofibrd while oil tlie bench, ancl was suspended on application for re-hearing.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    Widow and Heirs of Robert Ford v. H. P. Morancy.
    The decisions of the Register and Receiver of the Land Office, and other federal tribunals, on questions involving the conilict of titles emanating from the federal government, are not subject to the revision of State Courts.
    The courts can look behind a patent, but not in all cases ; and the general rule, that nothing perfects the title to public lands, but a patent, as not without exceptions ; it has been held, that where an equitable right originated before the date of the patent, whether by the first entry or otherwise, and was assorted, such right might be examined into.
    PPEAL from the District Court of the Parish of Madison, Farrar, J.
    xi. Farham. & Snyder, for plaintiffs and appellants. Edward Sparrow, for defendant.
   Voorhies, J.

The widow and heirs of Robert Ford, deceased, claim, as front proprietors on the Mississippi, a tract of laud measuring 329 superficial acres, and forming, as they contend, the back concession to which they were entitled under the provisions of the Act of Congress approved June 15th, 1832. They allege in their petition, that notwithstanding their claim, the defendant has obtained a patent from the United States, thereby preventing them from having their rights adjudicated upon by the Land Department of the Federal Government.

The defendant, Morancy, excepted to the jurisdiction of the court, on the ground that the question of title presented in this case, was a matter of which the federal tribunals had exclusive jurisdiction; and that, in consequence Of their award in his favor, which he pleads as res judicata, the plaintiff’s demand should be rejected. The answer further sets up title to the land under the patent issued im his name.

It appears that in the years 1834 and 1835, Ford had applied at the Land Office at Ouachita, once in person, and afterwards through an agent, in order to enter this land as back concession; but that ultimately his application was rejected, on the ground that the official plat of survey showed that this land extended so far back as to cover good lands bordering on another water course. This matter being brought before the Receiver and Register of the Land Office, Ford offered, in that respect, to contradict the correctness of the official plat of survey returned to the office ; but that tribunal ruled out the evidence and gave their award in favor of Morancy. Ford thereupon took an appeal to the Commissioner of the General Land Office and the Secretary of the Treasury, and during its pendency, Morancy instituted suit against him to be quieted in his title. On appeal to this court, Morancy was non-suited, on the ground that the question involved had been decided by the Register and Receiver, the competent tribunal in such cases, from whose decision an appeal was taken to the Commissioner ; and that, as the parties had not a patent for the land, neither possessed such a title as could, under the circumstances, be declared valid by this court. The decisions of the Register and Receiver of the Land Office, and other federal tribunals, on questions involving the conflict of titles emanating from the Federal Government, are not subject to the revision of State courts. In the case at bar, their final award in favor of the defendant puts an end to the contest between him and the plaintiffs. 2 An. 301. Such being the case, it is unnecessary to notice the bill of exceptions touching the admissibility of parol evidence to contradict the official plat of survey returned to the Land Office.

This court, undoubtedly, can look behind a patent in order to determine the rights of the parties; but not in all cases. We have held that, however true as a general rule, that nothing passes a perfect title to public lands but a patent, this rule was not without exceptions; and that, where an equitable right originated before the date of the patent, whether by the first entry or otherwise, and was asserted, such right might be examined. 10 An. 182,18 How. 81. But in the case at bar, there is no title, not even an inchoate one, exhibited by the plaintiff's ; and there is no privity of interest between them and the defendant. The application made by Ford at the land office, and the offer to deposit the amount of the purchase money, did not confer any right to the land. The action of the tribunals, whose peculiar province it is to settle such questions, must be considered significant in this instance; for they held, not only that the defendant's entry was valid, but that the plaintiffs could in no event make good their claim, unless by having the error complained of previously corrected, in order not to prejudice third persons who might in the meantime acquire bona fide rights.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed ; and that the plaintiffs’ demand be rejected with costs in both courts.

Merrick, O. J., dissenting. The decision of the officers of the land department does not conclude, and was not intended to conclude these parties; for the patent had issued previously to the contest before them, and the executive was, in the language of Secretary Spencer, fundus ojjicio. He properly remarks, “ If the original sale was invalid and the patent void, the claimants have their remedy at law, or if difficulties exist in the pursuit of such remedy, the power of Congress can be invoked. The Executive cannot invalidate its own previous acts by granting new patents.” It was not known to the parties, when the case of Morancy v. Ford was tried in this court, that the patent had actually issued, and the court was not aware that any obstacle existed which would prevent a decision in the land department upon the merits of the controversy.

The facts of the present case bring it clearly within the principles decided by the Supreme Oouvt of the United States in the case of Surgett v. Lapice, 8 Howard, 48 ; and the same equity exists in favor of the plaintiffs, which existed in that case in favor of Surgett; for the township maps show that no other water course, as defined by the Supreme Court of the United States, interfered with the back concessions.

The appellant does not complain of the manner in which the survey has been ordered, and I can see no good reason why we should not follow the decision in the ease of Surgett v. Lapice, which is an authoritative exposition of the law on the subject. I am of the opinion that the judgment of the lower court should be affirmed.

Oole, J. I concur with C. J. Merrick.


author: Oole, J.

text:
    State v. Heinrich Haase.
    Tu aoriminal case the Supreme Court cannot assume jurisdiction over questions of fact decided by the court below on a motion for a new trial.
    from the First District Court of New Orleans, Hunt, J.

      E. W. Mo'ise, Attorney General, for the State. G. Schmidt, for defendant and appellant.
   Oole, J.

The defendant has appealed from the judgment of the court upon a verdict pronouncing him guilty of the murder of his wife.

The sole point made by appellant in this court is, that the District Oourt erred in overruling the motion for a new trial.

The motion was predicated on the allegation, that the accused was insane at the time he committed the murder.

In support of the motion several affidavits were presented, which contain the opinions of the affiants, that he was insane for a time shortly anterior to, and at the time of, the homicide.

One of the witnesses states that he appeared to be insane on the subject of the infidelity of his wife, and seemed to have always before his mind the man who he believed to have seduced her.

The District Judge, in overruling the motion for a new trial, says, that the plea of insanity was urged by one of the counsel of defendant at the trial, and besides declares it to be his opinion, “ that if the declarations in the affidavits accompanying the motion had been submitted to the jury on the trial, they would not have influenced the jury to find a verdict different from that which they rendered on the evidence before them.”

The affidavits present a mere question as to the sanity of the prisoner, which is a question of fact and not. of law, and we cannot assume jurisdiction over it.

Judgment affirmed, with costs.


author: Cole, J.

text:
    Bank of Louisiana v. J. L. Satterfield.
    TSig notary who protested a bill of exchange certified that ho went to tho office of the acceptors of the bill in order to demand payment of it, and found the office shut, and, on enquiry, could not find the acceptors nor any one who could pay the bill — Held: That it will be presumed in the absence of proof to the contrary, that the notary had the draft with him, and that he went to make the demand within the usual office hours.
    from the District Court of the Parish of Pointe Coupee, Ratliff,

      I. L. Génírés, for plaintiff. A. Provosty, for defendant and appellant.
   Cole, J.

This suit is instituted by the'holders against the drawer of a bill of exchange.

The defendant pleads the general denial, except that he drew the draft sued on, and avers he drew on funds ; that the draft was not legally protested, and he was not legally notified of the protest.

There was judgment for plaintiff, and defendant has appealed.

Appellant relies in this court upon the alleged insufficiency of the certificate of the notary, and avers that it does not appear that the notary or his deputy had the bill in his possession ; that the presentment was made at a seasonable time, or that due diligence was used to find the acceptors.

The bill was drawn by defendant, payable to his own order, and endorsed by him to plaintiff, upon Messrs. Andrews & Sierau, New Orleans, who had accepted _ the same.

The certificate of the notary states, that he “ went to the office of the acceptors in order to demand payment of said draft, and found it shut, and, on enquiry, could not find the said acceptors, nor any one who could pay said draft.”

"Whereupon he protested the same, etc.

The notice to the drawer, who was also the only endorser, is sufficient, and is not contested.

We are of opinion that the certificate of the notary is sufficient.

It is rather to be presumed that the notary did his duty than violated it. Poydras v. Bell, 14 L. 392 ; Union Bank of La. v. Cushman, 12 R. 237.

A reasonable conclusion from the tenor of the protest is, that the notary had the draft with him, else why should he have gone to demand payment of the same ? and that he went within office hours, else why should he have repaired there at all. Nott’s Executor v. Beard, 16 L. 308 ; Deyraud v. Banks, 16 L. 461.

If the notary had neglected his duty, defendant could have easily established that the draft was not presented within the usual hours of the ordinary course of transacting business at counting-houses in New Orleans. Story on Bills, g 328 ; Ghitty on Bills, ch. 9, pp. 421, 422.

Judgment affirmed, with costs.


author: Merrick, 0. J.

text:
    John Nicholson v. Louis Desobry.
    "Where a cross-interrogatory which is pertinent and material has not been answered, the deposition should he excluded.
    The party taking the deposition can always protect himself from surprise by taking the rule, or filing: the notice allowed by the 17th section of the Act of 1S39, which embraces objections of this character.
    If the cross interrogatory which, is not answered is not relevant, the deposition should, not be excluded.
    Whore the damages claimed are the consequence of the defective execution of the contract, no format putting in default is necessary.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    XJL J. Livingston, for plaintiff and appellant. O. L. Bright, for defendant.
   Merrick, 0. J.

The plaintiff has instituted the present action as the transferee of the firm of Arthurs, Armstrong <& Co. He alleges that the defendant is indebted to him in the sum of $3800, with eight per cent, interest thereon from March 1st, 1849, for this, viz : that said defendant contracted with the firm of Arthurs, Armstrong & Co., composed of John Arthurs, John Nicholson, Jas. R. McClintoch, William Stewart and John Armstrong, for a steam engine of the same capacity as Dr. Clement’s, with the privilege of making any alterations not to affect the utility of the same; the contract bearing date the 19th day of December, 1846 ; that the contractors performed their part of the agreement; that the price agreed upon was $5800, two thousand dollars to be paid on the delivery of the engine on the plantation, two thousand dollars on the first day of March, 1848, and one thousand eight hundred dollars on the first of March, 1849, with eight per cent, interest; that the installment of two thousand dollars was paid; that the firm of Arthurs, Armstrong & Co. was long since dissolved, and petitioner became the owner of the partnership property, assets, credits, &e., and that said claim of $3800 and interest has been transferred to petitioner. He prays for judgment against the defendant for the debt and interest.

The defendant denies generally the allegations of the plaintiff. He denies that the plaintiff is the transferee of Arthurs, Armstrong & Co. He admits the contract, but alleges that instead of the mill and engine being delivered at the plantation oil or before the 1st of June, 1847, and put up ready for use by the 1st of October, 1847, as was stipulated in the agreement, it was not delivered until the 13th of August, 1847, nor put up until the — of November, 1847 ; that by reason of the bad materials used in their construction, defective workmanship, weakness of the cylinder, iron frames and shaft, defect in rollers, bad construction and weakness of steam-chest, imperfect cog-wheels, bad construction of the chain carrier, and general insufficiency of said engine and mill, and the unworkmanlike manner with which it was erected, it would not work and answer the purposes intended, but was the cause of great loss and damage to Mm. He alleges that in the month of December following, the plaintiff came to his plantation, and after examining the mill and engine, admitted their insufficiency, imperfections and bad construction, and agreed to return on the 1st of May, 1848, for the purpose of placing stronger iron frames under the sugar mill, furnish a new roller and wrought iron shaft of 81 inches in diameter, replace a new steam-chest, rebuild the carrier and furnish a stronger chain, in fact rebuild the engine and mill to give Ml and entire satisfaction to your respondent at the next rolling season ; that this second agreement was not fulfilled, and the defendant apprehending the loss of his crop if the rebuilding and repairing of the engine and mill were delayed any longer, purchased in the month of July materials and employed persons to repair and rebuild the engine and mill, so as to make them answer for the approaching grinding season, and expended the sum of $2026 74, as will appear by the bill of items, annexed to his answsr.

“ The defendant further alleges that he advanced, on account of the contract, the sum of $2000, at one time, and at another $667 ; paid $31 88 for freight ; making in all $2,698 88, which is much more than the value of the very defective mill and engine landed on Ms plantation. He complains that, by reason of the insufficiency and defects of the mill and engine, the cane was not sufficiently pressed ; that by frequent stoppages, caused by insufficiency and bad construction, much time was lost in the making of sugar, and the cane was damaged by frost, cold and bad weather ; that of the crop of 1847, he lost:

100 hhds. of sugar of the value of. $ 5,500
150 bbls. of molasses. 1,200
Of the crop of 1848, he lost:
60 hhds. of sugar, of the value of. 3,500
100 bbls. of molasses. 800
$10,800

“ The several sums of $2000, $667, $31 88, and $10,800, he pleads in recon-vention.

“ The District Court rendered judgment in favor of defendant against the plaintiff’s claim, and a judgment of non-suit as to the reconventional demand.”

The plaintiff prosecutes the appeal. He calls our attention to the bills of exception taken to the ruling of the District Judge, which he deems erroneous. The first bill was taken to the rejection by the District Judge of the depositions of James Parker, James Slicer and Andrew J. Nicholson.

The objection made, as it appears by the bill, is “ that the witnesses had not answered the cross-interrogatories propounded.”

It is now urged by defendant’s counsel, “ that the bill is insufficient and too general; that it requires the court to search through a voluminous transcript for the answer to every interrogatory, whereas it should contain a statement of every thing necessary, to enable the appellate court to say that the court below erred.”

It is true that the bill must contain the proper statements in order to enable this court to judge of the ruling of the lower court. But in stating in the bill the objection made by the opposite party, it is obvious it can only be stated as it was made in the lower court. If the objection made was a general one, it will so appear in the bill, and it is not the fault of the party taking the bill, that the objection was not more specific. The bill of exception appears, therefore, to be well taken in its form, and we must examine the objections pointed out by defendant’s counsel.

The objection to James Parker’s deposition is, that he has not answered the fourth cross-interrogatory. The question propounded by defendant was, who composed the firm of Arthurs, Armstrong & Co. If you state that any of them died, state when he died ? When was said firm dissolved ? What firm succeeded Arthurs, Armstrong <& Co.? Who were Nicholson & Armstrong ? When was that firm created ? When was it dissolved ? Witness answers, “ John Arthurs’ John Nicholson and Francis Armstrong, as I understood, composed the firm of Arthurs, Nicholson & Co. I do not know when the firm was dissolved. I do not know what firm succeeded Arthurs, Armstrong & Co. Nicholson & Armstrong were John Nicholson and Francis Armstrong. I do not know when this firm was created nor when it was dissolved.”

It is evident that the first branch of the fourth interrogatory, viz, the question “ who composed the firm of Arthurs, Armstrong <6 Co.,’’ has not been answered. The District Judge seems to have considered the question as pertinent and material. If so, the defendant was entitled to an answer. The answer given does not respond to the question, and is not entirely covered by the decision in the case of Lurty v. Merryman, 12 An., 181. Something must be left to the discretion of the Judge trying the case; and if he be of the opinion that a pertinent and material question has not been answered, he ought to exclude the deposition. The opposite party has no means of compelling an answer to his cross-interrogatories, except by objecting to the deposition, if his questions come back unanswered. The party taking the deposition can always protect himself against surprise by taking the rule, or filing the notice allowed by the 17th section of the Act of 1839, which embraces objections of this character. We cannot, therefore, say that the District Judge erred in excluding the deposition of James Parker.

The deposition of Andrew •Nicholson under the decision in the case of Lurtv v. Merryman, ought to have been received. Perhaps the numerous matters enquired of in each cross-interrogatory may have been one reason why the answers were not more explicit. The answer of James Slicer to the first cross-interrogatory is somewhat evasive. But as the defendant shows that this interrogatory was propounded for the purpose of showing by the planters for whom Slicer had'previously labored, that he was not a good workman, it is apparent that the question and answer are irrelevant. The matter to be decided is not whether the workmen employed had previously been inexperienced workmen. It is, whether the work done by them on the steam engine and sugar mill was or was not well done. If their work on some former occasion was bad, they may have acquired more experience since, or the work may have been done under the eye of one more competent to direct the workman. The objection is insufficient to exclude Sheer’s testimony.

The defendant offered witnesses to prove the reconventional demand. The plaintiff objected to the testimony, on the ground that there was no allegation in ■ the answer that the plaintiff had been put in default, the same being a pre-requi-site for the recovery of damages.

Where the damages are the consequence of the defective execution of the contract, no formal putting in default is necessary. Morton v. Pollard, 9 L. R. 176 ; Millaudon v. Ferguson, recently decided.

The Judge of the District Court did not, therefore, err in receiving the testimony.

The plaintiff offered on the stand as a witness Francis Armstrong, a member of the firm of Arthurs, Armstrong Co., but not a party to the suit, to prove that the assets of this partnership were transferred and sold by the firm to the plaintiff. The testimony of the witness was objected to and excluded, on the ground of interest. A written instrument from each of the partners, bearing date anterior to the institution of the suit, might have been offered in evidence to prove the fact sought to bo proven by this witness. The witness was offered to prove a single fact adverse to his interest, viz, that the obligation sued on had been transferred by himself and partners. The proof of the fact would be no defence to any reconventional demand, which the defendant might have against the witness and the other partners. It may be said that it will enable the plaintiff to set up the demand of Arthurs, Armstrong & Co. as a defence to the recon-ventional demand. The answer to this is, that the witness and other partners are only bound for their virile shares, and by proving the transfer, it would seem he enables the plaintiff to use the whole demand in defence of the action against himself, and to the prejudice of his co-partners, who are not parties to this suit.

We do not perceive therefore on what particular ground the testimony as to the fact sought to be proven can be excluded.

The party offering the witness runs the risk of a cross-examination upon the whole case should the opposite party think it safe to avail himself of his privilege. 12 An. 826, Davidson v. Poydras.

On the merits, conceding the transfer to be proven, we do not think the plaintiff has made out a case. The testimony of defendant’s witnesses shows that the work was badly done. This testimony is also corroborated by the agreement taken by the defendant of the plaintiff, December, 1847. The agreement is as follows, viz:

I will agree to be on Mr. Desobry’s plantation on or about the first of May next, tor the purpose of placing stronger iron frames under his sugar-mill, furnish him with rollers and wrought iron shaft of 8| inches diameter, replace a new steam-chest, rebuild the cane carrier and furnish a stronger chain ; in fact rebuild the engine and mill to give full and entire satisfaction to Mr. Louis Desobry at the next rolling season.

Plaquemines, 19i7t December, 1847.

[Signed] John Niciiolson.

The evidence does not, therefore, show that compliance on the part of the plaintiff which will enable him to recover under his original contract.

The defendant has alleged that he repaired the mill and engine in 1848. Plaintiff ’s counsel contends that, as there is no proof when the work was done, it must be presumed that the work was done by the plaintiff in 1848, and that he complied with the second agreement and is entitled to recover. This argument is inadmissible. The defendant has shown various repairs done by himself, and although he has not proven the date at which they were done, we can safely infer that they were done in consequence of the non-compliance of the plaintiff with' his second agreement.

The plaintiff further contends, that if there has not been a strict performance of the covenants contained in the contract on his part, he is still entitled to recover the value of his engine and machinery, because the defendant has taken and used the same, and ought to pay for the value, if not the contract price, of the same. The testimony on this branch of the case is entirely insufficient to form the basis of a judgment.

The reconventional demand is also too vague and uncertain. It does not appear that the defendant ever paid the plaintiff more that $2000. It is true he has made some considerable repairs upon the engine, but he has been using it many years. As to the loss of the crop of 1847, there is nothing definitely proven.

The defendant alleges that he repaired the mill and engine in 1848. If so, the plaintiff cannot be charged with any loss he may have experienced that year.

The plea of prescription pleaded by defendant cannot be sustained. The second installment was made payable the first of March, 1848, and the suit was instituted in April, 1857.

The plaintiff’s testimony having been excluded, the judgment ought to have been one of nonsuit.

It is, therefore, ordered, that the judgment of the lower court be so amended as to reserve to the plaintiff the right to institute a new action for the causes set forth in his petition, and that the judgment so amended be affirmed, the defendant and appellee paying' the costs of the appeal.


author: Land, J.

text:
    John Hughes, Tutor, et al. v. Robert L. Hughes, Tutor.
    Tlie testatrix, E. II., made a will and died in Louisiana, the place of her domicil. By lier will she gave to one of her children the whole of certain immovable property situated in. Jackson county, Mississippi, and one-third of the remainder of her estate. The balance of her estate she directed to be divided among her other four children. Held: That the right of the testatrix to make such a disposition of immovable property situatod in another State, is to be determined by the lex rei sitas.

    That the laws of Louisiana, the domicil of tho testatrix, making her children forced heirs for a certain proportion of her estate, being in conflict with tho lex rei sitas, the latter must govern.
    Held, further, that an express declaration in the will, of the intention of tho testator to give the one-third of the estate to ono of tho children as an extra part over and above tho legitimate portion, was not indispensable, the intention being apparent on the face of the will.
    from the Second District Court of New Orleans, Morgan, J.

      Durant & Horner, for plaintiffs and appellants. George L. Bright, for defendant.
   Land, J.

Tho validity of the olographic will of Elizabeth Hughes, is the subject-matter of contest in this suit.

The will is in these words :

“ This is my last will. I, Elizabeth Hughes, at my death, do hereby give to my son, Robert L. Hughes, the whole of my Ocean Springs’ property, lying in Jackson county, Mississippi, fully described in the act of partition between myself and John Hughes, made before J. Graham, Notary; and I give my son Robert every thing attached and belonging to said Ocean Springs’ property.”

“ I give my said son Robert, one-third of the remainder of my estate. The balance of my estate shall be divided between my five children, including Robert. I make Robert L. Hughes my testamentary executor. I revoke all former wills made by me.

“ Parish of Orleans, July 9th, 1855.

“ Written, dated and signed by me. Elizabeth Hughes.”

The testatrix was domiciled, made her will, and died in Louisiana, leaving at her demise five forced heirs.

It is contended that the disposition of the Mississippi property to the defendant, in addition to the one-third of the succession in Louisiana, is in contravention of Article 1480 of the Civil Code, and is, therefore, null.

The Article of the Code is in these words : “ Donations inter vivos or mortis causa cannot exceed two-thirds of the property of the disposer, if he leaves at his disease a legitimate child, one-half if he leaves two children, and one-third, if he leaves three or a greater number.”

Under the name of children are included descendants of whatever degree they be, it being understood that they are only counted for the child they represent.

The decision of this point is dependent on the question whether the validity of the disposition of the Ocean Springs’ property, is to be determined by the law of the domicil — -the law of Louisiana, or the law of the situs — the law of Mississippi. If by the former, it is clear that the disposition is forbidden by Article 1480 of the Civil Code. If by the latter law, it is equally clear that the bequest is permitted and valid. Por between the civil law of Louisiana, and the common law of Mississippi, there is a conflict as to the right or capacity of a testator to deprive his children of the whole of his property at the time of his death, by last will and testament. Under the law of Louisiana, the right is restrained and limited, but under the law of Mississippi the capacity is without limitation or restraint.

Laws which permit and regulate the alienation or acquisition of real estate or immovable property, are real statutes, and have no extra territorial operation or effect. Story on Conflict of Laws, 113.

The capacity or right to dispose of or acquire immovables, is determinable by the law of the situs. If a person has capacity to transfer by the law of the situs, he may make a valid title, notwithstanding an incapacity may attach to him by the law of his domicil. Story on Conflict of Laws, 430, 431, 474.

The forms and solemnities of contracts and testaments necessary for passing title to real estate or immovables, are also prescribed and governed by the local law. Ib. ?¿ 435, 474.

The extent of the interest to be taken or conveyed under a contract or testament, is also a question to be determined by the lex rei sitas. On this subject, Judge Story says, and, there seems a perfect coincidence between the doctrine of the common law and that maintained by foreign jurists : “ It is universally agreed, that the law rei sitas is to prevail in relation to all dispositions of immovable property, and the nature and extent of the interest to be alienated. If the local law, therefore, prescribes, that no person shall dispose, by deed or by will, of more than half, or a third, or a quarter of his immovable property ; or, that he shall dispose only of a life estate in such property, such laws are of universal obligation, and no other or further alienation, therefore, can be made. It follows that, if the local law prohibits the alienation of certain kinds of immovable property, or takes from the owner the power of charging them with liens, or with mortgages, that law will exclusively govern in every such case. D’Aguesseau fully assents to this doctrine, and says, that no one can be ignorant that when the question is, what portion of immovable property may be devised, it is necessary invariably to follow the law of the place, where the property is locally situate.” See Story on Conflict of Laws, g 445, 474.

Mr. Burge, speaking on this point, is more specific, and says : “ The power of making the alienation by testament is no less qualitas rebus impressa, than that of making the alienation by contract. .When, therefore, the question arises, whether the immovable property may be disposed of by testament, recourse must be had to the lex loci rei sites. That law must also decide, whether the full and unlimited power of disposition is enjoyed, or whether it is given under restriction. The validity of the testamentary disposition depends in the latter case on its conformity to that restriction ; whether the restriction consists in limiting the extent or description of property, over which the power of disposition may be exercised, or the persons in whose favor the disposition is made, or in requiring that the testator should have survived a certain number of days after the execution of the act by which the disposition was made. The total or partial defect of the will, on the ground that it did not institute heirs, or that it omitted to name the heirs, the disinherison of the heirs, the grounds on which the disinherison may be justified, are essentially connected with the power of disposing of immovable property by testament, and are, therefore dependent on the law of its situs. 4 Burge Comm. on Ool. and For. Law, pt. 2, chap. 12, pp. 217, 218.

If, therefore, the question be, whether the testatrix had capacity to dispose by testament of her Mississippi immovable property, or whether her testament is clothed with the forms and solemnities required to pass the title, or give the testament validity ; or whether the testatrix could dispose of the whole or a part of her immovable property in Mississippi by testament; or whether the testatrix could disinherit one or more of her children or heirs, as to said immovable property, is exclusively a question to be determined by the law of Mississippi, the law of the situs.

The bequest of this real estate to the defendant to the exclusion or disinherison of his brothers and sisters, cannot be considered contrary to Article 1480 of the Civil Code, or in violation of any other law of Louisiana, for the reason, that the power of disposition by testament exercised in favor of the defendant was not conferred on the testatrix by the law of Louisiana, but by the law of Mississippi, in conformity to the permission and policy of which the disposition was made.

The dispositions of the will being- permitted by the law of the domicil, so far as the property of the testatrix was situate in Louisiana, and subject to its operation, and being permitted by the law of the situs, so far as the immovable property of the testatrix was situate in the State of Mississippi, and subject to the operation of law thereof, the will must, therefore, be adjudged to be valid, notwithstanding the conflict between those laws as to the power of disposition by testament.

If it be true as contended by counsel for plaintiffs, that a deceased person can leave but one succession, it does not, therefore, follow, that there can be but one law from which the power of disposition by testament can be derived, and that law must be the lex domicilii; for the power of disposition as to a part of a succession may be given by the law of the domicil, and the power of disposition as to another part given or withheld by the law of the situs. And, when the laws are in conflict as to immovable property, each has its operation and effect within its territorial limits. Story on Conflicts of Laws, $ 475.

It is further objected to the will, that it does not contain an express declaration, that the one-third part of the succession in Louisiana, given to the defendant, was thus given as an advantage or extra part, over and .above the legitimate portion.

This express declaration is not sacramental, or indispensable to the validity of a donation mortis causa. The intention of the testatrix to give to the defendant the one-third part of her succession, as an advantage or extra part, is apparent on the face of her will. 3 Marcadé, pp. 219, 220, 221 ; 2 An. 201.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.

Re-hearing refused.


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    State v. Marcelin Boudreaux.
    Tlie lltli section of tlie Act of the Legislature of 1855, which provides that whenever the District Attorney shall not attend, the Judge shall have power to appoint an attorney to prosecute on "behalf of the Stato, (pro tempore,) is not a violation of Article 83 of the Constitution of 1852, which requires that the District Attorneys shall be elected by the people.
    Objections to an indictment for formal defects, apparent on tlie face of it, must bo taken by demurrer, or motion to quash the indictment before the jury are sworn, and cannot be mado afterwards.
    PPEAL from the District Court of the Parish of Terrebonne, Roman, J.
    XX E. Maurin, District Attorney, for the State. AycocJc & Wood, for defendant and apppellant.
   Cole, J.

The defendant, having been found guilty of an assault and battery and sentenced, has appealed.

1. He alleges that the prosecution was conducted not by the District Attorney, but by a special attorney appointed by the court to supply the absence of the legally elected and qualified functionary, and that this is a violation of Article 83 of the Constitution of 1852, which requires that the District Attorneys should be elected by the qualified voters of each district. A. bill of exceptions was taken to the ruling of the Judge in the appointment of a special attorney.

The eleventh section of the Act of 1855', relative to District Attorneys, provides that, whenever the District Attorney shall not attend, the Judge shall have power to appoint an attorney to prosecute on behalf of the State, (pro tempore.) Sess. Acts 1855, p. 369.

The seventy-fourth Article of the Constitution provides that the duties of the District Attorneys shall be determined by law.

The Constitution of 1852 does not prohibit the Legislature to confide to other* persons besides District Attorneys, in case of their absence, or inability to act, the duties of the latter as provided by law. State v. Bass, 12 A. 802.

The District Judge did not, therefore, err in overruling the objection to the appointment of F. S. Goode, Esq., as District Attorney pro tem.

2. An arrest of judgment was moved, on the ground that the indictment does not set forth any violation of the statute or statutes of the State of Louisiana.

The indictment concludes as follows :

Contrary to the form of the State of Louisiana, in such case made and provided, and against the peace and dignity of the same.”

The court did not err in overruling this motion'. The 18th section of the Act of 1855, to regulate the mode of procedure in criminal prosecutions, provides “ that every objection to any indictment for any formal defect, apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards.” Sess. Acts 1855, p. 175.

Judgment affirmed, with costs.


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    Converse, Kennett & Co. v. E. Hill & Co. — W. H. Letchford & Co. et als., Intervenors.
    The privilege granted to the vendor by the Article 3194 C. P. is not conditional, or dependent upon the solvency or insolvency of the buyer • it is positive, without condition, or limitation, as long as the property sold remains in the possession of the purchaser.
    It is not necessary that the defendant in execution should bo made a party to a third opposition claiming the proceeds of a sale made under a fv.fa.

    PPEAL from the Fourth District Court of New Orleans, Price, J.

      Hunton & Miller, for plaintiffs and appellants. P. E. Bonford, Semmes & Labatt,- and Emerson <& Huntington, for intervenors. G. P. McPheeters, for defendants.
   Land, J.

The plaintiffs, judgment creditors of defendant, caused certain merchandise to be seized and sold by the Sheriff, under a writ of fieri facias issued on their judgment.

Letchford & Co., Haggerty & Co. and Gould & Co. filed third oppositions and claimed the proceeds of sale in the hands of the Sheriff, on the grounds, that they were the unpaid vendors of the merchandise sold, and had a privilege on the proceeds superior to that of plaintiffs.

The facts are not disputed, that the third opponents are the vendors of the goods, and that the price is unpaid. The plaintiffs oppose their claims in argument, on three grounds : 1st, because they have no privilege; 2dly, because the goods were sold on a credit and 3dly, because the defendant is solvent.

Article 3194 of the Code provides that he who has sold to another any movable property, which is not paid for, has a preference on the price of the property over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser.

So that, although the vendor may have taken a note, bond, or other acknowl-edgement from the buyer, he still enjoys the privilege.”

The privilege granted by this Article of the Civil Code is not conditional, depending on the uncertain fact of the solvency or insolvency of the buyer, but is positive, without condition or limitation, if the property sold still remains in the possession of tho purchaser.

These grounds, therefore, are not tenable.

On the trial below, the plaintiffs objected to the introduction of evidence on behalf of Gould & Co., on the ground that E. Hill <& Co., defendants in execution, had not been made parties to their third opposition. The objection was overruled, and the evidence received. The court did not err. E. Hill <$> Co. were not necessary parties. Article 401 of the Code of Practice prescribes that the third opposition shall be served on the seizing creditor, and the Sheriff, but does not require that the defendant in execution shall be cited, or made a party to the proceeding. 1 An. 144. There is no error in the judgment of the lower court.

Judgment affirmed, with costs in both courts.


author: Buchanan, J.

text:
    Randolph Kessee v. Mayfield & Cage.
    Where one who has employed another for a limited time at a salary, discharges the employee before the expiration of the time, for a good cause, he is responsible to the employee for his services up to the time of the discharge.
    PPEAL from the District Court of the Parish of Terrebonne, Roman, J.
    XX Connolly <& Rightor, for plaintiff. Goode S Aycock, for defendants and appellants.
   Buchanan, J.

The plaintiff sues for wages, as overseer of a sugar plantation belonging to defendants, upon a contract. He avers that he was engaged on the 10th April, 1856, at a salary of eight hundred dollars ;.his engagement to terminate at the end of the year ; that he was discharged, on the 22d June, 1856, without cause or provocation. He claims wages for the whole year.

The defendants plead that they had good cause for discharging plaintiff, namely :

1st. Incapacity.

2d. Cruelty to the slaves.

3d. Disregard of the instructions of defendants.

Defendants tendered to plaintiff and deposited in court the amount of plaintiff’s wages, under Ms contract, up to the time of his discharge; although they deny that lie was legally entitled to any wages whatever.

Upon the trial of this issue, the defendants offered no proof of the two first grounds, or causes of discharge, alleged in their answer.

In relation to the third of those grounds, it was proved that the instructions of defendants to plaintiff, as their overseer, were, that he was not to chastise the slaves himself; but, in case they merited chastisement, that the same was to be inflicted by the driver, with the assistance, if necessary, of other slaves, under the direction of the overseer ; that all personal collision between the overseer and the slaves under Ms charge was strictly prohibited.

It was likewise proved, that the plaintiff told witnesses that he would not obey those instructions, and that he actually flogged slaves with Ms own hand.

Disobedience of defendants’ instructions, thus deliberate and intentional, was inconsistent with the duty of the plaintiff towards his employers, and was a sufficient cause for Ms discharge.

The question of law remains, whether the plaintiff, thus discharged for a good and sufficient reason, was entitled to wages, and, if any, to what extent.

The Judge of the District Oourt charged the jury, that if one who has employed another for a limited time, at a salary, discharge his employee before the expiration of the time, for a good cause, he owes the employee nothing for the services rendered up to the time of discharge.

An exception was reserved to this charge, and the District Judge added to the bill of exceptions, before Ms signature, that he had charged as stated, as his construction of Articles 2719, 2720 and 2721; but that he had read those Articles to the jury, and had further charged them, that they were at liberty, as judges of the law and the fact, to adopt a different construction of the Articles in question.

We feel constrained, after a careful examination, to put a different construction upon the statute quoted, from that expressed by our learned brother in the District Court.

The Article 2720 says: “ If, -without any serious ground of complaint, a man should send away a laborer, whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer, the whole of the salaries which he would have been entitled to receive, had the Ml term of his services expired.”

The Article, it will be observed, is silent in relation to the pecuniary result that will follow from a discharge of an employee by his employer, for a serious or sufficient cause. The Article declares a penalty against the employer who discharges his employee without a cause.

But it seems contrary to reason, that the penalty should equally apply (which is the doctrine of plaintiff,) to the employer who has a cause for discharging his employee. Indeed, the affirmation that the employer, in the first case, is responsible for the whole wages under the contract, is evidently pregnant with a negation that he is so responsible in the second case. But neither can we infer from the language of the Article, (which is the doctrine of the District Judge,) that the discharge, for a sufficient cause, forfeits the wages earned by the employee, under his contract, previous to the discharge.

The next Article (2721) declares such a forfeiture in one case, namely, when the employee leaves the service of his employer, before the expiration of the term of service, without a just cause. But that is not the case before the court; and we do not feel authorized to extend the penalty to a case not expressed. See Nolan v. Danks, 1 Rob. 332.

We, therefore, award to plaintiff, his wages under his contract to the time of his discharge. The tender and deposits are admitted by plaintiff’s counsel to be legal and sufficient.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that plaintiff recover of defendants the amount deposited, to wit, two hundred and nine dollars and fifty cents, with costs to the time of making the deposit; the subsequent costs of the District Court, and the costs of appeal, to be paid by the appellee.


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    Felix Michel v. A. J. Delaporte.
    The existence of the clause de non alienando in an act of mortgage, does not change the rule that a sale of succession property regularly made under a judgment of the Prohato Court discharges the mortgages on it given hy the deceased.
    APPEAL from the-District Court of the Parish of Terrebonne, Roman, J.

      Connolly <& Rightor, for plaintiff and appellant. F. S. Goode, for defendant.
   Cole, J.

The only contestation in this suit and the only subject of appeal arises from the following part of the judgment of the District Court: “ it is further ordered, that the privilege of plaintiff as a mortgage creditor be, and.the same is hereby recognized on the proceeds of the sale made to Lester and Tennent, and tie administrator is ordered to pay this judgment by preference, out of said proceeds in due course of law.”

Appellant aslrs to have the judgment so amended as to recognize and enforce his mortgage on the land itself and to order the same to be seized and sold to satisfy the judgment. He claims this amendment on the ground that there was the clause de non alienando in the sale from him to Ross, whose estate is adminis- • tered by the defendant.

It appears that after the death of Ross, the property bought by him of plaintiff and which he promised not to alienate or incumber to the prejudice of plaintiff’s mortgage, was sold at public auction by the Sheriff at a succession sale of Ross’ property, and the sale was recorded in the book of conveyances.'

It is well settled that a sale of succession property regularly made under a judgment of the probate court discharges the mortgages on it given by the deceased. The purchaser takes the property free from incumbrances, and the creditor must inforce his privilege or mortgage on the proceeds in the hands of the curator or executor. Leverich v. Prieur, 8 R. p. 97; Zacherie v. Prieur, 9 L. 200.

The existence of the clause de non alienando in the act of sale does not change this rule. The purchaser promises that he will not alienate the property to the prejudice of the mortgage retained by the vendor. When, then, the property is sold at a succession sale by order of a competent court, it is pot the vendee or mortgagor who alienates it, but the decree, sale and recording of the sale. Stat. 15th March, 1830, p. 64, §1.

The parties are supposed to contract subject to the laws of the land.

The laws provide that, after the death of a person, his personal and real estate may be sold for the purpose of settling up his succession.

If property bought by the decedent and subject to the pact de non alienando could not be sold, the liquidation of the estate might be deferred at the will of the mortgagee.

There is no exception in the law which prohibits property bought subject to this pact from being sold after the death of the vendee, like property not subject to the same.

It is true that the vendee or mortgagor promises not to alienate, but this promise only has its full effect during his life, for upon his death his absolute control over his property ceases, and it becomes subject to the laws for the settlement of estates, to the claims of creditors and to the residuary interests of heirs and legatees.

Prior to the sale of the property, plaintiff could have proceeded under Article 990 of the Code of Practice. He did not attempt to stop the sale by the administrator if he had any legal reason for so doing, and we can perceive no cause for interfering with the same.

Judgment affirmed, with costs.


author: Büchanan, J.

text:
    L. Bordelon, for the use, &c., v. J. M. Weymouth et als.
    The receipt by tbe creditor of a check on the bank for tho balance due him, it being understood that the drawer of the check had then no money in bank, but would deposit money within two or three days to meet it, is not a giving of timo to the debtor which will discharge his surety.
    A debt is not novated by a check on a bank given in payment of it.
    PPEAL from the Fourth District Oourt of New Orleans, Price, J.

      G. & E. E. Schmidt, for plaintiff. Race & Foster and J. Leovij, for defendants and appellants.
   Büchanan, J.

This is a suit against sureties for balance of sales made by an auctioneer, and not paid over by him to the party who employed him to make the sales.

The evidence is rather confused as to the amount due. The sales were made for account of a succession, and the administrator of the succession is the principal witness. He states the amount now due by Weymouth to the succession to be five hundred and eleven dollars and fifty cents, which includes one hundred and eleven dollars and fifty cents “ not claimed in the petition.” Yet this sum of five hundred and eleven dollars and fifty cents is the exact amount claimed in the petition. The administrator must have meant to say that the item of $111 50 was not included in settlement and checks, of which he speaks immediately after-wards.

Again, the remaining' testimony of the administrator shows that (exclusive of the $111 50 already mentioned) there was only $300 unpaid by the auctioneer, this being the amount of his check, which was refused payment at bank.

Total of auctioneer’s indebtedness, according to our view of

this testimony.$411 50

Upon which the auctioneer has paid. 100 00

Leaving balance now due.$311 50

The defence of the sureties is, that they have been released by the creditor giving- time to their principal; and, secondly, that the debt was novated by taking a check in payment.

Neither of these pleas is sustained by the evidence.

The receipt by the creditor of a check on a bank for the balance due him, it j being understood that the drawer of the check had then no money in bank, but would deposit money within two or three days to meet it, was not a giving of time to the debtor.

Neither is a debt novated by the creditor taking from his debtor a check on a bank for the amount due. Such a check is nothing more than an order upon an agent, and cannot be viewed as giving a new debtor in the place of the original debtor, nor as substituting a new debt in the place of the original debt.

The universal practice of men in business is to keep their funds at a bank and to make payment through checks on the bank. This custom is convenient, because it saves the necessity of carrying large sums of money about the person, and facilitates the keeping of accounts. If the check is not honored, the parties are in the same situation as if no check had been given.

It is, therefore, adjudged and decreed, that the judgment of the District Oourt 1)6 amended, and that the plaintiff and appellee recover of the defendants and appellants, in solido, three hundred and eleven dollars and fifty cents, with legal interest from judicial demand, and costs of the District Court; those of appeal to be paid by the appellee.


text:
    Succession of E. Crocker.
    Tlio appointment oí' a dative testamentary executor should not bo made when there ave no debts of the estate to be paid, nor legacies to be discharged.
    PPEAL from the Second District Court of New Orleans, Morgan, J.
    XJL R. Hunt and H. Dugué, for appellants. R. Nt Ogden, Bonford and Leovy, for appellee.
   Buchanan, J.

The testamentary executor, JET. H. Croclcer, having been removed from office, a petition was presented by Albín Rochereau, in February, 1857, to be appointed dative executor.

This application was opposed by several of the instituted heirs on the ground, that there was no necessity for the appointment, there being no debts due by the estate, no legacies except those to the opponents; and, on the further groun d, that the testamentary heirs were in possession of the estate.

The District Court, by judgment rendered in April, 1857, overruled the opposition, and appointed Rocliereau dative testamentary executor. The opponents appealed.

We have been referred, in argument, by the counsel of appellant, to our decision in the case of Reed v. Crocker, rendered in June, 1857, and reported in 12th An. 436, which settled the portions of the heirs of this estate, and referred them to the District Court to make a partition of the same.

The case of Reed v. Crocker was an action instituted by certain of the heirs-at-law of Elisha Croclcer against his testamentary heirs, to annul the last will, so far as it disposed of more than one-fourth of the estate; and for a partition. This action was pending when the application of the appellee for the dative exe-cutorship was filed. The demand in that action recognizes Elisha Crocker’s testamentary heirs as being in possession of his estate ; and the decree of this court has maintained that possession to the extent of one-fourth, and has sent the heirs-at-law into possession of the other three-fourths.

No proof has been made that there are any debts due by the estate; nor that there are any other legacies than those to the opponents. It is difficult to perceive what would be the functions of the dative executor, were we to confirm his appointment. Without seizin of the estate, without debts to pay, or legacies to discharge, the appointment would result in nothing but useless costs.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that the application of the appellee for dative executorship of this estate, be dismissed at his costs in both courts.


author: Vookiiies, J.

text:
    Carmélite Ruys, Wife, &c., v. H. V. Babin, Sheriff, et als.
    Propoi’ty was purchased at a Sheriff's sale, under execution against tho husband by M. M. trans-terred it to JX., who sold it to the plaintiff, the consideration stipulated being the transfer to her vendor of her rights in the succession of her deceased father. The husband always remained in possession of the property. Held: That the property so purchased by the wife became her para-phernal property, and that the character of her title was not affected by the fact that her Tondor, subsequently to tho sale, made a relinquishment of the consideration stipulated in tho act of sale.
    PPEAL from the District Court of the Parish of East Baton Rouge, Beale, J.
    XJl A. S. Hennen, for plaintiff. J. Joor and H. M. Favrot, for defendants and appellants.
   Vookiiies, J.

The plaintiff, Carmelite Ruys, sets up title to certain property described in her petition, -which has been levied upon as her husband’s, L. A. Latil, to satisfy two judgments obtained against him for the use of A. lkiplanlier. The defendant avers that she is not the bona fide owner; that if she lias any apparent title thereto, it was obtained without any consideration, and ms simulated, and intended fraudulently to cover her husband’s property from the claims of his creditors; and that Thomas F. Hernandez, from whom she pretends to derive title, was a party to said fraud and simulation, and never was tie bona fide: owner of said property. She further avers, that the title was always ia L. A. Latil the husband, and that he has always remained in possession.

It appears that on the fifth of September, 1846, Joseph Menard purchased at Sheriff’s sale, all the right, title and interest of Latil to the lot and improvements in controversy; and on the 14th of the same month and year, toansferrea the same by authentic act to Hernandez. On the 5th of September, 3853, Hernán-dez conveyed said lot and improvements to the plaintiff, for the snna of $600; in payment of which she transferred to him her rights in the succession of her-deeeased father. In the meantime, the plaintiff and her husband remained im possession of the premises without paying rent, and Hernandez paid the taxes. It further appears, that when the latter collected the amount commgt to the plaintiff from the succession of her deceased father, he gave it back to her; and fe testifies that he considered this as a donation.

There can be no doubt as to the complete divestiture of the husband's title by the Sheriff’s sale in 1846 ; so that the effect of the transfer from Hernandez to the wife must regulate the respective rights of the parties.

The evidence in the record does not show any fraud on the part of Hernandez. He purchased from Menard for a valuable consideration; nor is it pretended that his purchase was simulated and fraudulent. The naked fact that Latil was in possession of the property sold under execution, does not of itself vitiate the conveyances from the Sheriff to Menard, and from the latter to Hernandez, as the evidence shows the reality of these transactions. Now, in regard to the question as to the consideration of the sale from Hernandez to the plaintiff it appears to us clear, that the sale being made in the name of the wife, and the consideration stipulated being the transfer of her paraphernal rights, it follows, that the property so purchased is paraphernal. It is the consideration as stipulated in the formation of the contract, that gives character to the deed; and if Hernán- dcz chose afterwards to give up the stipulated consideration, and the plaintiff acceded to it, her original rights could not certainly be impaired thereby. Even if there was no consideration for the sale from Hernandez to the plaintiff, still it is not conceived in what respect the defendant could possibly complain ; for the act, if not one of sale, must be treated as a donation, enuring to the benefit of the party in whose favor the same was made.

Judgment affirmed.


author: Merrick, C. J.

text:
    Kleinwort & Cohen v. Klingender Brothers.
    Merc insolvency is not sufficient to rentier a debt due. which, by its terms, is payable at a future day.
    An actual surrender, either voluntary or forced, is required to annihilate the term fixed by the contract for the payment of a debt.
    An affidavit for an attachment sued out upon a debt not due is defective, if it docs not state that the debtor is about to remove his property out of the State before the debt becomes due.
    P.PEAL from the Fourth District Court of New Orleans, Price, J.

    .Ol E. Briggs, for plaintiffs and appellants. H. T. Hayes, for defendants.
   Merrick, C. J.

This is an appeal from a judgment on a rule dissolving an attachment.

The plaintiffs, a commercial firm residing in London, England, represent that Klingender Brothers, a commercial firm of Liverpool, are indebted to them in the sum of £500 sterling, or its equivalent in dollars ; for this, that plaintiffs are the owners of a bill of exchange of that amount, drawn November 7th, 1857, by G. W. Oliver <& Co., sixty days after sight, which was duly accepted by defendants, but that they have failed and proved utterly insolvent, by reason whereof the said bill is now due and payable.

The sixty days after sight not having expired when the attachment was sued out, it is contended that the debt was not due and that the affidavit is not in the form required by the Act of 1823, p. 170.

It appears that the objection is well taken. Mere insolvency is not sufficient to render a debt due, which, by its terms, is payable at a future day. An actual surrender, voluntary or forced, is required to annihilate the term fixed by the contract for the payment of a debt. C. C. 2049 ; Millaudon v. Foucher, 8 L. R. 582 : Funes v. Bank U. S. 10 Rob. 533.

The debt not being due, the affidavit is defective in not stating that the debtor was about to remove his property out of the State before the debt became duo. Acts 1826, p. 170, sec. 7. The case cannot be distinguished from the case of Millaudon v. Foucher, 8 L. R. 582, above cited.

Judgment affirmed.


text:
    Niza Dutillet et al. v. O. L. Blanchard—E. Bergeron et. als., Warrantors.
    It cannot be objected to tbe confirmation of a land claim by Act of Congress, that the commissioner exceeded his powers by inquiring into and. reporting upon a claim not embraced in the instructions of Congress, when it appears that Congress, notwithstanding, accepted the report and confirmed the
    The American State papers published by order of Congress are admissible as evidence The copies which they contain of legislative and executive documents, are as good evidence as the originals are from which they arc copied.
    "When the proceeding was in rerti under tlio Act of the Legislature of 1829, relative to proceedings against lands for works dono upon the roads and levees of tbe same — Held: That the Act only requires notico to be given “ to any person whom it may concern,” and that when there has been a sufficient description of the land in the advertisements, and the proprietor, by the use of duodili-genco might have protected himself, tlio sale will not be annulled on the ground that the property ' was described as belonging to others than the real owner.
    The prescription of five years, under the Act of the Legislature of 1834, would cure such an irregularity in tlio description of tlio property.
    PPEAL from the District Court of the Parish of Assumption; Roman, J.

      lx. A. Gentile and E. Maurin, for plain tiffs. Mills & LeBlanc and Beatty é Bush, for defendants and warrantors, appellants.
   Cole, J.

The plaintiffs, as heirs and representatives of Thomas de Villanueva and Constance Breaux, his wife, claim a certain tract of land in the possessiou of defendant, which was confirmed to said Villanueva.

There was judgment for plaintiffs and defendant has appealed.

The points of contestation are the title of plaintiff, the identity of his title with the land in possession of defendant, and the effect of a purchase of the land made at Sheriff’s sale.

1. The title of plaintiffs is established ; their claim is based upon an Act of Congress, passed the 28th of February, 1823, confirming said land to Thomas dt Villaneuva, under No. 134, as stated in the American State Papers, vol. 3d, p. 516, and under No. 135, as appears from the certificate of L. Palms, the Register.

The Act of Congress of 11th of May, 1820, directs the Register to make a report to the Secretary of the Treasury upon certain claims of land. 1 Land Laws, p. 330.

The Act of Congress, dated 28th of February, 1823, confirms the claims described by the Register in his report of the 6th of January, 1821.

The Register, in that report, (American State Papers, vol. 3, p. 523,) says:

“ The preceding claims comprehended in class third are not founded on either Spanish grants, concessions or orders of survey exhibited to me, and are not, therefore, embraced in the literal meaning of the Act of 11th of May, 1820, but ' as I believe they are within the spirit of that Act, I have thought it proper to report them ; I infer this from analogy to former laws on the subject. By previous Acts of Congress, claims in Louisiana have been recognized as valid, which were founded on settlement rights, provided the habitation and cultivation were shown to be on the 20th of December, 1803, or anterior to that period; all the cases reported in this class are proved to have been in peaceable possession either by the claimants or those under whom they claim, before, and some of them long previously to tlie 20th of December, 1803, and, therefore, would have been valid under former laws, to which I have alluded,” &c.

He then proceeds to recommend them as claims worthy of confirmation.

It is objected, that.the second and fourth sections of the Act oí Congress of the 11th of May, 1820, provided only for the confirmation of claims “ founded upon any Spanish grant, concession, or order of survey,” whereas this claim of Villaneuva, No. 135, is not founded either on a Spanish grant, concession or order of survey, but only, as appears from the certificate of claim, on actual inhabitancy and cultivation by claimant’s author, under permission of proper Spanish officers, previous to the 20th of December, 1803. Public Land Laws, Berchard’s edition, vol. 1, pp. 330, 360.

This might have been a proper objection to have urged in Congress against the confirmation of the claims, in class third, but it is inoperative in the tribunals of the country.

If the Register reported upon classes of claims which were not comprehended in the instructions of Congress, it was in the power of Congress to have rejected the part of the report which embraced claims not contemplated by their Act of 11th of May, 1820 ; but Congress accepted the report and confirmed the claims.

The defendants cannot offer any valid objection to the confirmation, for they had no title in the lands confirmed, and they cannot control the disposition made of the public domain by the national legislature.

The confirmation of the claim of Villaneuva is established, independently of the certificates of the Register, which were objected to on several grounds. Plaintiff offered in evidence the American State Papers, vol. 3, from p. 506 to p. 523, inclusively, for the purpose of showing the different classes of claims therein contained, and the report of Samuel II. Harper, Register, on the 3d class, and to show that the claim of Thnmas de Villaneuva is numbered in said State Papers 134, and that said claim was confirmed by Act of Congress of 1823, upon the report of said Harper.

The District Judge rejected the evidence, except as to the notice of the claim, for the purpose of proving rem ipsam.

The court erred. The American State Papers are published by order of Congress, and are good evidence in land suits ; such is the doctrine of the Supreme Court of the United States.

In Bryan et al. v. Forsyth, 19 Howard, p. 339, they say that the American State Papers, published by order of Congress, maybe read in evidence in the investigations of claims to lands, “ they contain copies of legislative and executive documents and are as valid evidence as the originals are from which they are copied.” See Watkins v. Holman, 16 Peters, p. 56.

These State Papers” show that the claim of Villaneuva was confirmed by Act of Congress of 28th February, 1823, upon the report of S. H. Harper, Register:

There is a discrepancy between the certificate of the Register and the American State Papers, in the statement of the number of the claim ; in the former, it is No. 135, in the latter, No. 134: this variance cannot benefit defendants.

Plaintiffs in their pleadings allege this discrepancy; they describe the land fully, and annex the plat of survey made by the United States Government. If this variance were not a mere clerical error, and there were two claims confirmed to Villaneuva, defendants could easily have shown, inasmuch as they were put on their guard as to the variance, that there existed another claim besides that sued for, either under No. 135 or 134, in favor of Villaneuva, located elsewhere, on the Attakapas Canal.

2. The identity of the land claimed with that in possession of defendant is satisfactorily established, even if it should be considered not to have been admitted by the answer.

3. But, notwithstanding the title to the land in possession of defendant be established to have formerly been in the ancestor of plaintiff, the latter cannot recover it, because they have been divested of title in the same by its adjudication to Edward Blanchard, from whom the title passed by several mesne conveyances to the defendant.

The adjudication was made in a suit to recover payment of work done upon the roads and levees of the land in contestation, under the provisions of the Act of February 7th, 1829.

Plaintiffs urge that this adjudication could not affect their rights, because “ the heirs of Villaneuva were not notified that their land was about to be sold, but they were put off their guard by the advertisement, which stated that it was the land of McDonogh, Bringier and Hall, and by the proceedings being carried on against these parties.”

There are two forms of action under the Act of 1829, the one is personal, or against the owner personally; the other is in rem, or against the property. Act 1829, §§27, 28, 29 ; B. & 0. Dig. p. 755.

When the action is in rem, or against the land, the plaintiff presents his petition to the Judge, and prays that the property be seized and sold to pay the amount of his claim.

To the petition is annexed the claim of plaintiff, duly certified by the inspector.

On presentation of the petition the Judge orders the Sheriff to seize the property and to give notice in cases of non-residents in one of the newspapers published at New Orleans, and in cases of residents, in the newspapers published in the parish, if there be one ; if not, notice is given in the ordinary way, by posting the notice at the church door, court-house, and other public places of resort. The notice calls upon any person whom it may concern, to show cause to the court within one month from the date of the order directed to the Sheriff, why the property thus seized should not be sold according to the prayer of the petition ; and if at the expiration of the said month nobody does appear or make a defence in writing, the court proceeds to try the cause, ex parte, and pronounce if there be sufficient grounds in favor of the plaintiff, but if anybody appears and makes defence, the court proceeds to the hearing of the cause in the usual form. Act Feb. 7th, 1829, § 30.

The order given in the suit of Edward Bergeron against the lands of J. McDonald et als. and dated on the 20th May, 1843, under which suit the land in controversy was sold, is as follows :

“ Let an order of seizure issue as prayed for, and let the Sheriff seize the lands within described, and give notice during eight days in the English and French languages, in one of the newspapers printed in New Orleans, to John McDonald or McDonogh, Louis Bringier and Hall, and to all whom it may concern, to show cause in one month from the date of the order directed to the Sheriff, why the said lands should not be sold according to law to satisfy the sum of one thousand seven hundred and seventy-five dollars with legal interest thereon from judicial demand, and the costs of suit.

[Signed] H. F. Deblieux, Judge Fourth District.”

On the 21st October, 1843, about five months subsequent to the previous order, the following- judgment was rendered in the said suit oí Bergeron :

Three judicial days having- elapsed since judgment by default was taken; it being proved to the satisfaction of the court that the advertisements required by law have been made, and there being- no opposition thereto, it is hereby ordered, adjudged and decreed, that the Sheriff of this parish proceed to sell the land within described to satisfy, &c.

[Signed] Taos. 0. Nioiiolls,

Judge Second District.”

The notice ordered by Judge Deblieux was published in the Louisiana Courier, of New Orleans, but there is no copy in the record of the form of notice given, but it must be presumed that the notice was given as ordered, because the decree of Judge Nicholls was based upon the execution of the order of Judge Deblieux and the judgment declares that the advertisements required by law have been made, and as one of the requisitions of the law was, that notice should be given to all whom, it may concern, the notice must have been so made. The Sheriff declares in his return that he gave due notice.

In pursuance of the judgment of Judge Nicholls, the Clerk issued an older dated the 17th November, 1843, to the Sheriff of Assumption, commanding him to seize the land as the property of John McDonald or McDonogh, Louis Brin-gier and Hall."

The Sheriff executed the writ on the 22d November, 1843. Afterwards, the Sheriff advertised the property for sale by advertisements in the French and English languages, announcing the sale to take place' on Saturday, the 6th of January, 1844 ; and, as there was no newspaper in the parish, the advertisements were posted up in three different places of public resort in Assumption, to wit: on the parochial church door, at the parish court-house and at the door of the billiard room kept by Pierre Blanchard, at Napoleonville. The advertisement stated that the land was seized as the property of John McDonald or McDonogh, Louis Bringier and Hall.

At the sale on the 6th January, 1844, the land was adjudicated to Edward Blanchard for one- thousand dollars cash, being over one-half of the appraised value, as required by the 30th section of the Act of 1829.

The action in rem is explained in the Code of Practice; Art. 285 provides that provisional seizure may be ordered when the proceedings are in rem, that is to say, against the thing itself, which stands pledged for the debt, when the property is abandoned, or in cases whore the owner of the thing is unknown or absent. Art. 292 declares that the Sheriff shall seize and take possession of the thing, directing at the same time that public notice be given to all persons interested, to appear within fifteen days to answer to the petition; and Art. 294 provides, if no one answers the petition, that after certain proceedings, the property may be sold in execution. O. P. 290 to 295.

The Act of 1829 was passed subsequently to these provisions of the Code of Practice, relative to the action in rem, and is substantially the same. Act of 1829,120, 27 to 31.

The 30th section of the Act of 1829 only requires that notice shall be given to any person whom it may concern.

The law supposes that the description of the land will suffice to put the proprietor on his guard, and that he will know it is his property which is to be sold.

If this be so, the giving of a wrong name cannot deceive him. If it could, then the legislator must hav.e erred in supposing that a description of the property would be sufficient to protect the interests of the proprietor.

The description of the land in the suit of Blanchard against it for the payment of his work was sufficient. It was as follows, in the notice of seizure : “ a certain quantity of land situated in this parish, on the canal leading to Lake Yeret, containing thirty-five arpents more or less fronting on the left bank of said canal, bounded above by lands of Beasly and Barrow, and below by lands of Pierre Trahan, seized as the property of John McDonald or McDonogh, Louis Brin-gier and Hall."

Independent, however, of the notice given by the Sheriff, the proprietor of the land in contestation could have known by other ways, that his land would be sold.

By section 20 of the Act of 1829, the Inspector of Roads and Levees was obliged to make an inspection of the levees, bridges and highways, to ascertain what repairs were needed, to notify the planter, and afterwards to sell the work to the lowest bidder at public auction.

•It appears in evidence, that Collins, the Inspector, gave public notice in French and English advertisements posted at the parochial church door and the courthouse door, that he would on a certain day sell the work to be done on the land in dispute, and afterwards sold it at public auction at the court-house of the parish.

It must be concluded, that if the proprietors had used the diligence .contemplated by law, and had used the precaution of having an agent upon the land, or in the parish to attend to the making of the road and levee thereon, they would have had ample notice, because an examination of the road and levee, with notice to the agent, accompanied by actual labor upon the road and levee, which may be considered almost as a direct personal notice; also, the publication of the sale of the work upon the land sufficiently described; also, the suit to get payment for the work, with advertisement of the seizure, would have put the agent upon his guard, and have been a sufficient notification to him of what was transpiring as to the land, and must be considered as doing away with the effect of the wrong name.

It is the duty of a proprietor to keep up his roads and levees, and be present upon the land or have an agent to attend to the same upon his land or in the parish at the time they need reparation.

If the proprietors or their agent had been upon the land, the working of the road and levee thereupon would have notified them of the future sale, for they must be supposed to have known the law, and that a sale in default of payment would follow the execution of the work.

The working o£ the road and levee would have sufficed at least to put them upon inquiry as to what would be the effect of this labor by those not employed by them.

Proprietors who have thus neglected their obligations are not to be favored over subsequent purchasers in good faith.

We are therefore of opinion, as the action of Bergeron was in rem, it was unnecessary for the Sheriff to state that he had seized the land, as that of any particular person. The seizure of the land, a sufficient description of the same, and notice to all the world were sufficient, and the addition of the words in the advertisement,1,1 as the property of John McDonald," &c., if an irregularity, was cured by the prescription in the statute of 1834, which has been plead. Sess. Acts, 1834, p. 123,34.

It should be observed, this case differs from that of Michel v. Parish of Terre-bonne, in 9 th Annual, and many others, in this point, that in this the plaintiffs seek to set aside a solemn judgment rvhich has been rendered, whereas in the latter, injunctions were sued out to prevent the sale, or else the party did not institute the action in rem against the land, but at once sued the parish.

It is not necessary to decide in this suit, whether the objections now urged would have sufficed to have arrested the sale. Morse v. McCall, 13 An. 215 ; Laforest v. Barrow, 12 An. 149.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that there be judgment in favor of defendants against the claims of plaintiffs, and that plaintiffs pay the costs of both courts.