author: Voorhihs, J. Yoorhies, J.

text:
    St. Paul’s P. E. Church v. Giraud & Lewis et al.
    Whore, toy the terms of a contract, a certain amount is duo to the contractors, sub-contractors and material men are entitled to toe paid out of that amount on service of their attested accounts, although 'the contractors fail afterwards to comply strictly with their agreement. The proper test in such a case is : had tho contractors complied with the stipulations up to the time of tho falling due of the installments for which tho sub-contractors and material men had served their attested accounts?
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      L. C. <& G. B. Duncan, James McConnell, C. Roselius and P. E. Bonford, for plaintiff and appellant.

      J. B. & C. T. Bemiss, T. W. Collens, Cyprien Du-four, Walker & Bierce and Z. Latour, for defendant.
   Voorhihs, J.

The Congregation of St. Paul’s Protestant Episcopal Church contracted, on tho 7th day of May, 1853, with Giraud <& Lewis, for the erection of their church edifice at the corner of Camp and Bartholomew streets, in the city of New Orleans. The basement was to be completed by the first day of October of the same year, — the church for worship, by the first day of January of the ensuing year, — and the whole church by the first day of March, — under a penalty of §20 per diem. The contractors having failed to comply with their contract, were put in default by the plaintiffs, and thereupon abandoned the enterprise.

In the meantime, sub-contractors and material men had served their attested accounts upon the congregation, who, therefore, retained in their hands the sum of $3000 duo to Giraud <6 Lewis under the contract. The present suit was then instituted by the plaintiffs, who were proceeding to have the building completed by other persons; and they made parties to these proceedings the contractors, Giraud & Lewis, against whom a claim for damages is preferred, — and the subcontractors and material men, whose claims are questioned as regards the plaintiffs.

The defence is, that the cause of the default of the contractors must bo traced to an uncontrollable event, — the epidemic of the year 1853 ; that they were in law entitled to further time to complete the building; and that the refusal of the plaintiffs to extend further time, and their neglect to make payments, have compelled the contractors to abandon the contract. Then follows a plea in reconvention for damages. The other defendants, — the sub-contractors and material men, — -join in this answer, and claim to be paid the amount of their several claims out of funds in the plaintiffs’ hands, and to have their privilege recognized.

Upon a careful examination of the facts of this case, we have come to the same conclusion as the Judge of the District Court. The plaintiffs have not proven any damages beyond those covered by the stipulations of the contract. On the other hand, the evidence shows that, at. the time of the service of the claims of the sub-contractors and material men, there was due the contractors, under the contract, tho sum of $3000 ; out of these funds, these parties are entitled to be paid rateably. Under the contract, this amount was due; and, although it be true that they cannot claim any thing beyond the contract, yet they are entitled to claim whatever was, at the time, due under the contract.

The evidence does not substantiate the averment that, owing to tho difficulties thrown in the defendants’ way by the prevalence of the yellow fever, they could not comply with the stipulations of the contract. The want of funds may have had, and probably had that effect; but it appears that the plaintiffs complied litterally with their stipulations as long as Giraud & Lewis were prosecuting their work; the sum of $3000 was retained by them, because the sub-contractors had served their attested accounts.

The price stipulated to be paid to Giraud <& Lewis, under the contract, was the sum of $35,500. The building was completed for the sum of $35,875, including the sum previously paid, of $17,599 ; but the real amount chargeable to the contractors under the terms of the contract is $14,980, which leaves a balance of $2,931 in their favor. But this amount must be deducted from that which they owe to the plaintiffs as damages, say $6,380, leaving a balance against them of $3,449. For this amount, judgment was rendered in the court below.

It is, therefore, ordered and decreed, that the judgment of the District Court bo affirmed, with costs.

Same Case — Ok a Re-hearing.

Yoorhies, J.

The decision of the court in this cause does not come in conflict with the ruling in Hale v. Wills, 3 An. 504, as the two cases do not present the same state of facts.

When Giraud & Lewis abandoned their contract, the item of $3000 was due under the contract, and the right of the sub-contractors and material men had already attached. The subsequent failure of the contractor cannot prejudice their claims. It is true that the plaintiffs obtain judgment against the defendants, Giraud <& Leíais; but it must be borne in mind, that the church was completed according to the contract, leaving a balance in favor of the contractors, and that this amount was more than compensated by the damages, which were the result of the abandonment. It is evident, then, that at the time of the abandonment of the contract, there was really due, under the contract, the amount awarded to the sub-contractors and material men. The latter are not dependent on the future event of a strict compliance, on the part of the contractor, with the terms of the contract. The proper test is: had the contractor complied with the stipulations at the time of the falling due of the installment, for which the sub-contractors and material men had served their attested accounts ?

This was the case with the defendants in the present instance. The plaintiffs’ liability had, therefore, attached.

The court had overlooked the fact that the plaintiffs were, under the contract, entitled to a deduction of ten per cent, on the item in question. This error must now be rectified.

It is, therefore, ordered, that the judgment of this court be amended, so as to reduce to the sum of two thousand seven hundred dollars the item of three thousand dollars allowed to the sub-contractors and material men ; that, in all other respects, the judgment of the District Court be affirmed, the said appellees paying the costs of appeal.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    John L. Manning, Tutor, v. P. O. Ayraud et al.
    Whore tho plaintiff partially succeeds in an injunction suit, he is entitled to recover tho costs of suit.
    APPEAL from the Fourth District Court of the Parish of Ascension, Duffel, J.

      Johnson <& Denis, for plaintiff and appellant.

      J. H. Ilsley and Henry L. Duffel, for defendants.
   Land, J.

The plaintiff enjoined the defendants, the Police Jury of the parish of Ascension, and a jury of freeholders acting- under their authority, from opening and constructing a public road irom New River to the Mississippi River, opposite Donaldsonville — on the ground, among others, that the road is located in part on lands belonging to the minors represented by him, and that the expropriation of the lands for the purposes of the road, and the assessment of damages, as a compensation for the same, had not been made according to law, and were prejudicial to the interest of the minors.

On this ground, the injunction was sustained, but dissolved as to the other grounds stated in the petition, and the plaintiff was condemned to pay the costs of suit. In this respect, the judgment is erroneous; where the plaintiff partially succeeds in an injunction suit, it must be on the ground of a legal cause of action, and as a consequence, is entitled to recover the costs of suit.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, so far as it condemns the plaintiff to pay the costs of this suit; and it is now ordered, adjudged and decreed, that the Police Jury of the parish of Ascension be condemned to pay said costs, and fthat the judgment of the lower court thus amended be affirmed And it is further ordered and decreed, that the appellees pay the costs of this appeal.


author: Merrick, 0. J. Merrick, 0. J.

text:
    William Young v. Francis L. Cook.
    Tho decision in tho case of Emns v. <?ra?/, 1 N. S. 712, re-affirmed to the effect, that when interest in a witness is established by evidence aliunde, it cannot bo disproved by his own testimony.
    Parol evidence is not admissible to explain receipts, where the receipt itself is tho only legal evidence of a contract for the sale of real estate, and where tho effect of the parol proof would be to substitute a parol agreement for the sale of an immovable in the place of the receipt.
    from the Sixth District Court of New Orleans, Howell, J.

      Michel & Koontz, for defendant and appellant.

      E. Hiestand, for plaintiff.
   Merrick, 0. J.

The pleadings in this case are stated by defendant’s coun sol as follows, viz :

“ Plaintiff brought suit against Francis L. Cook, upon the following receipt, annexed to the petition.
‘ Received from William Young, on account of two lots of land purchased from me in Algiers, in payment for which I hold his two notes, each for one hundred and fifty-nine dollars and thirty cents, due respectively on March 3d, 1858 and 1859, one hundred and sixteen dollars and thirty-two cents, payment on account of above notes.
‘ New Orleans, Nov. 10th, 1857.
(Signed) Francis L. Cook.’
Francis L. Cook answered, admitting his signature to the receipt, but alleged that he was acting in the premises as agent for his brother, F. W. C. Cook ; that at that time, he was in the habit of signing his name as agent or attorney in fact for his brother, in which capacity he was employed; but that in this instance, he accidentally and erroneously omitted to add beneath his signature the words,
“ agent or attorney in fact”; that William Young, plaintiff, well knew that Francis L. Cook was not acting for himself, but for his brother, whose agent he was, and plaintiff well knew that Francis L. Cook did not own the lots in question, but that they were the property of F. W. C. Cook, and were by him sold to plaintiff for the price specified in the receipt.
Francis L. Cook disclaimed all interest in the matters in controversy, and called in his brother, F. W. C. Cook, to defend the. suit.
F. W. C. Cook answered, that he was the owner of the lots of ground referred to in the receipt on file; that he sold them to plaintiff for the price therein specified ; that he purchased, by authentic act, said two lots of ground, with twenty others, in square No. 13, in the town of Belleville, on the other side of the river, from R. B. Sumner, of this city, under an imperfect title, which the said Sumner bound himself to make good and perfect, as soon as possible ; that a copy of Sumners title to F. W. C. Cook, was furnished to William Young, plaintiff, and that its defects were explained to him; that thereupon plaintiff purchased said two lots, upon the express condition to take such title as F. W. C. Cook had, and not to require a perfect title, until F. W. C. Cook had obtained a perfect title from R. B. Sumner.
F. W. C. Cook asked for judgment over against Sumner, for having failed and neglected to perfect said title, as he had obligated himself to do.
R. B. Sumner answered, admitting the sale to F. W. C. Cook, by notarial act, of the lots described in said act by an incumbered title, which he bound himself to make good as soon as he conveniently could ; alleged that he was unable to comply with said agreement; and denie'd that Cook had ever demanded the fulfillment of the said obligation.
“ Upon these pleading's, the parties went to trial.”

Judgment having been rendered against the defendant, he appeals.

He relies upon two bills of exception for a reversal of the judgment of the lower court.

It is shown by the first bill, that the defendant and F. W. C. Cook, offered the former, F. L. Cook, to be sworn on his voir dire, to show that he was only a nominal party to the suit, in order to introduce the testimony of the witness on the merits, and that the witness was rejected because he was a party to the suit, and defendant could not contradict or vary the written agreement by parol, nor contradict the interrogatories taken pro confessis.

We see no error in the ruling of the lower court on this point. The interest of the witness was shown aliunde, and could not be removed by his own testimony. In Evans v. Gray, 1 N. S. 712, this court said, that:

“ When the interest in the witness is established by evidence aliunde, and particularly in such a case as this, by the very instrument on which suit is brought and the party was apprised months before the testimony was taken or the trial gone into, tliat the objection would be made, we think it would be contrary to principle, and quite unsafe in practice, to permit a witness who was, prima farde, incompetent, to do away that incompetency by his own declaration. There is just as much danger to permit him to testify to that fact as to any other in the cause. And if he can be relied on as to tell the truth, whether he has been released or not, ho may be as safely depended on to give evidence in chief, without inquiring of him if he be competent.”

The other bill of exception was taken to the rejection of the witness, James Graham, who was offered to prove that the receipt annexed to plaintiff’s petition was signed in error, in not stating that he was the agent of his brother, F. W. C. Cook ; that F. L. Cook has no interest in this suit, and had no claim to the lots sold ; that the title in law was valid, wanting only certain probate proceedings to make it perfect; that the receipt annexed to the petition is in error in stating that said two lots of ground are located in Algiers; that said lots arc really located in Belleville, adjoining Algiers, and were lots Nos. 5 and 6, in square No. 13; that the promissory notes were signed in the presence of the witness, a Notary Public, who had drawn up an act of sale from F. W. C. Cook to William Young, to be signed by the parties whenever 21.22. Sumner had given said F. W. C. Cook a good and perfect title to said property ; that the whole transaction arose at the instance and suggestion of said 22. 22. Sumner, who wished to dispose of said square of ground, to be re-sold to his workmen at the Belleville Iron Works, of whom plaintiff was one; that said JR. 22. Sumner has neglected to complete the title, and that the same could be done with little trouble and delay, and that this suit has been caused solely by the carelessness and neglect of the said R. J2. Sumner.

This evidence was also rejected, on the ground that it could not be received or admitted to contradict, explain, or enlarge the written instrument or vary the effect of the interrogatories on facts and articles taken as confessed.

It is true, as contended for by defendant’s counsel, that parol testimony is admissible to explain receipts, but not where the receipt itself is the only legal evidence of a contract for the sale of real estate, and the effect of the parol proof would bo to substitute a parol agreement for the sale of an immovable, in the place of the receipt. 0. 0. 2415.

If the defendant had been permitted to prove the error in the contract as to the agency, and in the description of the lots, it would only have annulled the contract, which would have entitled the plaintiff to recover his notes and the consideration paid.

But it is said that the testimony was admissible as against Sumner, to prove his laches and violation of his obligation.

As Sumner is no party to this appeal, it is idle to pass upon the question.

It is, therefore, ordered,, adjudged and decreed by the court, that the judgment appealed from be affirmed as to the parties before us ; the appellants paying the costs of the appeal.

Same Case — On an Application eor a Re-hearing.

Merrick, 0. J.

An application for a re-hearing on the demand in warranty, has been filed, on the ground that R. 22. Sumner was cited as appellee.

We find wo were misled by attending to the appeal bond in which the war-ran tor was not named as obligee, instead of referring to a citation, attached to one of the leaves of the record, which shows that R. B. Sumner was personally-cited.

On the merits of the demand in warranty, we concur with the District Judge, that the case is not made out, neither would the rejected testimony materially aid the defendant.

Re-hearing refused.


author: Merrick, O. J.

text:
    In the matter of Peyton Bond, Praying for a Monition.
    When an appeal is taken from a decree rendered on an application for a monition, confirming a tax sale, and neither the assessment roll nor the ordinance of the Police Jury levying the tax, nor any adjudication of the proporty or Sheriff’s deed has been offered in evidence, the decree will he reversed.
    APPEAL from the District Court of the Parish of Washington, Wilson, J.

      John Wadsworth, for plaintiff.

      D. N. Hennen, for defendant and appellant.
   Merrick, O. J.

The appellant in this case filed no opposition to the monition in the lower court, but appeals directly from the decree.

The case must, therefore, be considered here on such questions only as were open for consideration in the lower court, and as to those questions, as the record is certified to, contain all the evidence adduced, we have the same means of determining the case as the District Judge.

It is only necessary to consider one of the numerous objections made to the sale.

The sale confirmed by the monition, is a tax sale alleged to have been made May 3,1846, (more than ten years previous to the monition, as required by the statute,) “ of 640 acres of land lying on the waters of Tchefuncta, bounded North by lands of Squire Lea, South by A. L,ea, East and West by public lands, assessed as the property of F. Lea, deceased, a non-resident of the parish of Washington, seized to satisfy the State and parish taxes for the years 1842 and 1843, amounting to the sum of eight dollars and thirty-two cents, and costs amounting to the sum of one dollar and sixty-eight cents.”

The tract of land really belonged to the Succession of Franklin W. Lea, deceased, and his executrix appeals.

Neither the assessment roll, nor the ordinance of the Police Jury, nor any adjudication of the property or Sheriff’s deed has been offered in evidence; there is, therefore, nothing in the record to satisfy the court, that the property has been correctly described, and the price at which it was purchased, truly paid as required by the third and fifth sections of the Act of 1855, p. 463. Phillip’s Dig. p. 341.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that said monition and proceedings therein, be dismissed, as in case of non-suit; the appellee paying the cost of both courts.


author: Vooriiies, J.

text:
    Philippe Allinet v. His Creditors.
    A judgment dismissing a claim «against an insolvent estate for want of proof, and which is a judgment of nonsuit only, will not support the plea of res judicata.

    Whore the claim of a creditor making opposition to a tahlc.au of distribution lias been dismissed by such a judgment, he may, when another tableau is filed, prove his claim, and demand to be paid: out of the funds to be then distributed, such an amount as will place him on a par with the other ordinary creditors who had partaken in the former distribution.
    APPEAL from the Fifth District Court of New Orleans,, Eggleston, J.

      L. Caslera, for plaintiff and appellant. Race é Foster, for defendant.
   Vooriiies, J.

This case comes up on a naked question of law.

The opponent, who is a creditor of the insolvent estate of Philippe Allinet, had his claim dismissed for want of proof, on the first tableau of distribution of the funds then in the hands of the syndic. Some time afterwards, the syndic filed another tableau, to distribute pro rata among' the creditors other funds ready for distribution. The opponent made his appearance, averring- that he had been left out on a former distribution; and that, out of the present funds, he should be so classed as to be placed on a par with the other ordinary creditors, who had partaken iu the former distribution.

The plea of res judicata has been interposed ; but it is evident, that it has no application in this instance, 1st, because the judgment rendered against him on the former occasion is not one of rejection, but of nonsuit; and 2dly, because the appellant does not seek to disturb the former distribution of funds, but asks relief out of other funds which are now being distributed.

It may be conceded, however, that filio judgment of homologation, dismissing-the opponent’s claim for want of proof was res judicata with regard’ to the funds which it distributed. ’This would not affect the result; for the appellant does not impugn that judgment. His alternation has reference only to the funds now in the hands of the syndic, and subject to a new and independent distribution.

It does not follow, because the judgment homologating- tifo first tableau of distribution is res judicata with regard to the funds then under distribution, that it is res judicata as to all other funds which may subsequently come into the hands of the syndic. The creditor who has received a dividend on the former distribution cannot be called upon to litigate his rights anew in this respect; but this is no reason why he should oppose the demand of another creditor, who has not had that advantage, to be placed on a par with him out of other assets of the estate. In the case of Gottschalk v. His Creditors, 12 An. 10, the court said : “A tableau of distribution duly homologated constitutes, with some qualifications, a judgment conclusive upon the creditors, so far as it affects the fund distributed; but the rights of creditors upon any part of the assets not distributed are not affeeted by such judgment; and the syndic is bound to administer any surplus in his hands for their benefit.”

The opponent’s demand is equitable. He does not claim any undue advantage over co-creditors; but on the contrary, applies for an equal dividend. If the debtor’s property is the common pledge of his creditors, and if the distribution of the assets of an insolvent estate between the ordinary creditors should, if possible, be made strictly pro rata, relief was properly extended to the appellees, under the circumstances of this case. This course was adopted, iu a similar case, by our predecessors. The court on that occasion remarked : “ It is conceded that the appellant is estopped as to the moneys in the syndic’s hands, distributed by the first tableau ; but we cannot consider him as barred by the former decree as to those new moneys now proposed to be distributed.” West v. His Creditors, 3 An. 530,

Relief is extended to the creditor in this case, not on the assumption that he has a privilege, but on the ground that he is an ordinary creditor, contending with ordinary creditors, for the purpose of effecting an equal distribution between all the parties out of the assets of the common debtor.

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

Merrick, O. J., dissenting. The opponent and chirographic creditor, Louitz, being a citizen of another State, disregarded the surrender of Philippe Allinel, and obtained a judgment upon his demand against the insolvent in the Circuit Court of the United States. The syndic of Allinet’s creditors having in the meantime filed his first tableau of distribution, Louitz returned into the State court, and made opposition to the same. His opposition was dismissed, without any reservation, for want of proof, and the fund was by decree of court distributed among the creditors, giving each chirographic creditor sixteen per cent, of his demand. This decree became final. A second tableau of distribution has been filed, placing Louitz thereon as a chirographic creditor for his pro rata of such further funds as have come into the hands of the syndic since the filing of the former tableau. He opposes the second tableau, on the ground that he is not placed on an equal footing with the other chirographic creditors. He demands that sixteen per cent, of his claim be first paid him, and then that the residue, of the funds be distributed pro rata among all the chirographic creditors. The syndic appeals from a judgment sustaining Louitz’s pretensions.

Now, if we aualize the opposition of Louitz, we shall find that it resolves itself into this; viz :

The decision of the court, which gave the whole of the fund in the hands of the syndic at the time of the filing of the first tableau, to the creditors therein named, was unjust; therefore, I am entitled to take by preference out of the fund to be distributed under the second tableau, a sum which will repair this injustice and make me equal to the other creditors, before any portion of the residue be distributed.

For if it be conceded, that the fund under the first tableau was properly distributed to persons entitled thereto, Louitz admits that he was not entitled to any part thereof, and as a consequence, that he is not entitled to any money from any other source to make him equal to persons who had received only what was their duo and to which he had no right.

The judgment rendered, homologating the first tableau of distribution and dismissing Louitz’s opposition thereto, produced the same legal effect as such admission would have done.

The creditors cited and represented are parties to the insolvent proceedings, and are at once plaintiffs and defendants. Acts 1855, sec. 9 ; C. C. 3054; Conrey v. His Creditors, 8 An. 372, and Guérin v. His Creditors, 3 La. 559. Hence, after publication of the filing of any tableau of distribution, they are in court, and are bound by the decree to which they are parties and which merely distributes the proceeds of property which the law “ has fully vested in the creditors.” Acts 1855, p. 432, secs. 11, 35. In this case, Louitz was not only represcnted in the concurso on the first tableau, by the attorney appointed for that purpose, but he made special opposition to the same. His opposition was dismissed, as already observed, without any reservation, and the fund was adjudged by a competent tribunal to belong to others. In other words, it was adjudged that Louitz had no right, legal or equitable, to any part thereof. This judgment was not appealed from by him; hence, it acquired the force of the thing adjudged. Lang v. His Creditors, 14 La. 241.

If it acquired the force of the thing adjudged, what was therein determined must be considered just, equitable and true, and can never after be questioned in any judicial proceeding between the parties. ITence this, and all other courts are bound always to say that Louitz had no legal or equitable right to the fund, because he was once heard on this question, and it was so decided by a competent tribunal. Then, as he had no right to that fund, which in the eye of the law belonged to others, he can claim nothing on account of it. This argument is reduced to this : in a former proceeding, the court gave A., B. and C. what belonged to them, and did not belong to me — therefore, I am entitled by a preference to sixteen per cent, on the fund now to be distributed, because A., B. and C. had a just claim to that much more than I on the former tableau; which is absurd.

Louitz being without any privilege or mortgage, and having no claim on account of the former judgment, which was decided against him, and which he is not now permitted to question, finds himself where he has always been, a simple chirographic creditor, entitled to his pro rata only of any fund to be distributed.

This court said in the case of Lang v. His Creditors, 14 La. 242 : “ It has been repeatedly held in this court, that a judgment of homologation, so far as it settles the rank and privilege of the creditors, is final, and must have the authority of the thing adjudged. La. Ins. Co. v. Campbell, 6 N. S. 133; Mayfield v. Comaux, 7 N. S. 183; Ory v. His Creditors, 12 La. 122. But the appellant insists that he is yet in time to urge his privilege, because no distribution has been made of the amount on which he claims it; that the evidence shows the balance of one thousand four hundred and seventy dollars and thirty-two cents of the former tableau to be yet in the hands of the syndic; and finally, that said tableau was irregular and defective, inasmuch as the said balance is carried to the credit of the mass of the ordinary creditors, without their names or claims being set forth, as required by law. We do not perceive how the fact of no distribution having been made of the funds declared to belong to the mass of the ordinary creditors, or the irregularity pointed out in the former tableau, can, in any way, help the appellant in establishing the privilege he now seeks to obtain. His opposition to the first tableau was for the sole purpose of obtaining among the privileged creditors a rank which had been denied him. The final judgment dismissing his opposition forms an insuperable bar to his renewing any claim for a privilege on the balance at the foot of said tableau, irregular and defective as it may be in other respects. Even if the present appellant had succeeded in raising in our minds some doubts as to the correctness of the former judgment, we could not touch it. Res judicata pro veritate accepitur.”

So in the case before us, the final judgment dismissing Louitz’s opposition is in law an insuperable bar to his renewing his claim for the sixteen per cent, which was refused him on the former tableau.

In the case of Gottschalk v. His Creditors, 12 An. 71, we said that “ a tableau of distribution duly homologated constitutes, with some qualifications, a judgment conclusive upon the creditors, so far as it affects the fund distributed.”

In Ory v. His Creditors, Judge Martin held, that where a tableau of distribution is filed by the syndic’s fixing the rank and rights of the creditors, and is homologated, it becomes res judicata, and no subsequent alterations or other claims can be allowed in a second tableau filed by the syndics. 12 La. 122.

But it is supposed that the judgment of the lower court is sustained by the ease of West v. His Creditors, 3 An. 530, which is thought to be analogous.

The plea of res judicata was pleaded in that case, as in the present, but the effect of the plea was denied, because the opponent to the second tableau was not a party to the first one. Mr. Justice Rost said (in the original opinion): “ The plea of res judicata cannot be sustained. The demand in this and the former case is not between the same parties in the same capacity. In the first case, the opposing creditor claimed in his own right; he now claims in right of his father, whose legal representative he is. The exception of the thing adjudged is stricti juris, and if there could be any doubt as to the identity of the things claimed, or the persons claiming them, it cannot be maintained. 5 Toullier, No. 492; Cloutier v. Lecomte, 3 Martin, 481. In these cases, there is no doubt that the party claiming is not the same.”

On the re-hearing, Mr. Justice Slidell, as the organ of the court, said : “ It is conceded, that the appellant is estopped as to the moneys distributed by the first tableau." But they allowed him to set up his claim upon the second tableau, because his second opposition was formed in his representative capacity, and the judgment upon the first tableau was restricted to the funds in the hands of the syndic. See p. 532, 3 An.

There, as the opponent in West’s case held a privilege claim, the court very properly said : “ The assets left by an insolvent are the common pledge of his creditors. The pledge continues as long as there are assets to be divided.”

The creditor being allowed to set up his privilege claim upon the second tableau, was paid in virtue of his privilege, and not because an unjust judgment had been rendered in the first instance. The court expressly recognize the authority of the case of Lang v. His Creditors, and distinguish the case on the grounds already mentioned. Exceptio probat regulam.

But as we have already shown that Louits has neither privilege or mortgage, he cannot be paid by preference, and was properly classed as an ordinary creditor.

I think, therefore, that the judgment of the lower court, should be reversed, and the tableau homologated as filed.

Buchanan, J., concurs in this opinion.


author: Duffel, J.

text:
    Constance Bique Perrine v. Edward Planchard et al.
    Although the absence of malice, in an act which has caused damage, is sufficient to prevent the recovery of vindictive or exemplary damages, yet in such a case special damages may be allowed.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      D. Augustin, for plaintiff.

      Q. LeQardeur and J. J.E. Planchard, for defendant and appellant.
   Duffel, J.

The plaintiff, who is a free woman of color, alleges, in substance, that defendant, Edward Planchard, who is the keeper of the Police Jail of the city of New Orleans, did, on the 14th of May, 1858, under color of his authority, but in truth in a spirit of wantonness and with malice, cause her to be forcibly fastened and stretched upon a platform where slaves only are whipped, and did moreover then and there cause her to receive ten lashes, notwithstanding her repeated remonstrances that she was free. That in consequence of said ill-treatment, and her state of pregnancy, she was prostrated in a bed of sickness, was deprived of her daily earnings, and made to incur large expenses for medical aid, &c., &c. The petitioner therefore claims, as special and exemplary damages, two thousand dollars.

The District Court having condemned the defendant, Edward Planchard, to pay five hundred dollars, he appealed.

It appears from the evidence, that the plaintiff was arrested by a police officer for disturbing the peace and being drunk ; at the same time, Ana'ise, a slave of Mr. Rousseau, (was arrested as a runaway, and both were put together in the lock-up for confinement. On the following morning, the slave Andise was called out; she sent plaintiff in her place, (the evidence does not disclose how it was accomplished), and the latter was lodged in jail under the name of the slave Ana'ise; shortly after, Mr. Rousseau called at the jail, with an order from the Recorder for the release of his slave, and being satisfied of the identity of his slave from the description given in the entry book of the prison, he requested the jailer to inflict ten lashes on Andise, before bringing her out; but the deputy, who had been sent for that purpose, soon returned, and informed Mr. Rousseau that the woman claimed to be free, whereupon Mr. Rousseau replied, yes, she has the habit of saying so, but she is not yet free; thereupon, the deputy went back and executed the order. Wo are of opinion that the entry in the books, showing the commitment of the plaintiff as a slave, under the name of Andise, and the declaration of Mr. Rousseau, that his slave was in the habit of calling herself free, overbalance the statement of the plaintiff as to her freedom, and therefore, that the defendant was not actuated by malicious designs, nor can we say that he acted with unwonted imprudence and haste when we take all the surrounding circumstances in consideration. It does not however follow, that, because this peculiar case does not give rise to vindictive or exemplary damages, the defendant must not bo made to pay the amount of special damages suffered by the plaintiff. “ Every act whatever of man, that causes damage to another, obliges him, by whose fault it happened, to repair it.” G. 0. 2294. And again, “ Every person is responsible for the damage he occasions, not merely by his acts, but by his negligence, his imprudence, or his want of skill.” G. 0. 2295.

Doctor Vianet who attended upon the plaintiff, says that he believes that she remained in her room about 25 or 26 days, and that the whole costs of her sickness, exclusive of nurses, are about one hundred dollars. Another witness, Magdelaine Godin, says that plaintiff was nursed by her own sister. Gregorio Gargani, another witness, says that he had in his employ the plaintiff, as a cook and washer, that she is a very industrious woman, and remained sick one month and a-half, and supposes that plaintiff suffered between four or five hundred dollars damages for doctor, nurses, time lost, &c. Josephine Charles, the sister of plaintiff, who nursed her, was heard, and testifies that she attended on her one month; she does not say whether she intends to make a charge for her services. Upon the whole, wo think that plaintiff is only entitled to one hundred dollars for the on tiro expenses of her sickness, and that fifty dollars will be a full compensation for her lost time.

It is, therefore, ordered, that the judgment of the lower court be reversed, and it is further decreed, that the plaintiff recover of the defendant, Edward Plan-chard, the sum of one hundred and fifty dollars, and the costs of the lower court; the costs oí the appeal to bo paid by the plaintiff.


author: Vooiuiies, J.

text:
    W. T. Stewart v. T. W. Watts.

      A note addressed to a physician, stating that his account had boon examinod, and the charges found to be exorbitant, coupled with a refusal to pay, is not a sufficient acknowledgment to interrupt the prescription of such account.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Goodrich <§ BeFrance, for plaintiff.

      L. Selby, for defendant and appellant.
   Vooiuiies, J.

The plaintiff sues for services rendered as a physician. The case was tried by a jury, and resulted in a verdict in his favor.

The defendant filed the plea of prescription in this court. All the items of the account are prescribed, unless there has been interruption of prescription. O. C. 3503.

The note addressed by the defendant to the plaintiff in the month of May, 1858, does not contain a promise to pay. This note reads as follows:

Dr. Stuart, your account has been received and examined so far as to ascertain that your charges are nearly double those of other gentlemen of the profession. I shall, therefore, not pay it.” This document is at most a recognition that the services were rendered. Although it may be inferred that, had the defendant found the charges reasonable, he would not have refused to ])ay the bill, yet the acknowledgment is not sufficient to interrupt prescription. O. C. 3486 ; 12 R. R. 243; 13 An. 579.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and'reversed, and that there be judgment in favor of the defendant, with costs in both courts.


author: Buchanan, J.

text:
    Joseph A. Gagné v. Robert R. Barrow.
    ■\Vhcn the principal demand is not appealable in amount, and the evidence shows that there is no real foundation for the demand in reconvention for an amount over three hundred dollars, nor any legal ground for supposing such amount could be recovered, the appeal will be dismissed.
    APPEAL from the District Court of the Parish of Terrebonne, Roman, J.

      Goode <& Aycock, for plaintiff.

      Connelly & Rightor, for defendant and appellant.
   Buchanan, J.

Plaintiff sued defendant for two hundred and fifty dollars damages, for ploughing up his road, two arpents in length.

Defendant reconvened, claiming five hundred dollars, as compensation for services rendered plaintiff in ploughing his road.

The case was tried by a jury, which found a verdict on the principal demand in favor of plaintiff, for twenty-five dollars, and against defendant, upon his claim in reconvention.

Defendant has appealed.

The principal demand is clearly not within our jurisdiction. However liable to objection, therefore, it may appear on the face of this record, we are powerless to afford relief.

As regards the reconvontional demand, although nominally above three hundred dollars, it is evident there is no serious foundation for a claim of that amount, in the cause of action stated. S^iposing that defendant had put plaintiff’s road, of two arpents extent, in perfect order, the evidence shows that such a service would have been worth, at most, upon a quantum meruit estimation, about the tenth part of three hundred dollars. See the remarks of Judge Slidell in deciding the case of King v. Reed, 7 An. 492.

It is, therefore, adjudged and decreed, that this appeal be dismissed, at costs of appellant.


author: Voorhies, J.

text:
    E. G. Harper v. Commercial & Railroad Bank of Vicksburg.
    In a third opposition to a seizure of property, based upon the alleged ownership of such property, the issue to be tried between the third opponent, and the party provoking the seizure, is the fact of ownership.
    The third opponent stands in the attitude of plaintiff, and is bound to administer proof of his pretensions, in order to sustain liis opposition. But he cannot enquire into the validity of the proceeding between the plaintiff and defendant in the original suit.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Goodrich <& DeFrance, for plaimiff and appellant.

      A. R. Hynes aud It. Short, for opponent.

      J. F. Montgomery, for defendant.
   Voorhies, J.

The plaintiff instituted suit by attachment against the defendant, whom he alleges to be his debtor for the sum of $16,352.

A writ of attachment having issued, the Sheriff seized a judgment entitled W. P. Anderson v. Mark Valentine, but which the plaintiff, in his petition, alleges to be the property of the defendant. W. P. Anderson filed a motion, in which he sets up his right of ownership of this judgment, complains of the consequent illegality of the seizure of his property, and concludes by asking the dissolution of the attachment, with one thousand dollars damages. The plaintiff answered this demand, by setting forth with more particularity the facts connected with the question of ownership.

This motion was tried on the face of the papers. The plaintiff was not allowed to introduce his evidence; and judgment was rendered, dismissing the attachment of the judgment, on the ground that the allegations in the petition did not authorize the seizure of property held in the name of the intervenor.

It is contended, on behalf of Anderson, that his application is not in the nature of an intervention, but is, properly speaking, a third opposition. If so, he should have proceeded by means of a petition, which, together with a citation, should have been served on the party making the seizure, as in ordinary suits. Such opposition is considered as a separate demand, distinct from the suit in which the order was granted. C. P. 398.

In a third opposition, based upon a claim of ownership, the issue to be tried between the third person, who pretends to bo the owner of the thing seized, and the party who has provoked the seizure, is the fact of ownership. The third op-poser, under the Article cited, stands in the attitude of a plaintiff, and is required to administer proof of his pretensions, in order to succeed in his application. He cannot enquire into the validity of the proceedings as between the plaintiff and the defendant in the original suit, which is a distinct proceeding from such third opposition. In this respect, the judgment of the inferior court is erroneous.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed and annulled, and that this case be remanded for further proceedings according to law, the appellee, Anderson, paying the costs of appeal.


text:
    Olive Abston et als. v. Rebecca Abston et als.
    A decree or a Probate Court ordering a will to be executed, does not amount to a judgment which is binding on those who were not parties to it, and when the will, thus probated, is offered as the title, in virtue of which property is claimed or withheld, its validity may be inquired into collaterally.
    A will in the nuncupative form made in the State of Mississippi, and attested by only throe witnesses, in the absence of any ovidenco with regard to the laws of the State where it was made, will be, in this State, declared invalid.
    The law of the actual domicil of an intestate, at the time of his death, will govern in, matters relating to the right of inheritance.
    Where a man married a second timo, while his first marriage was undissolved, and the second wife in contracting the marriage acted in good faith, — Held: That at his death, the lawful wife and the wife de facto, will bo each entitled to one-half of the community, and the children born of each marriage, entitled as legitimate children and heirs-at-law to succeed to the separate property of their deceased father, in equal parts, as if they had been born of the same marriage.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow <& Montgomery and A. R. Hynes, for plaintiffs and appellants.

      Goodrich & Def ranee and H. M. Spofford, for defendants.

      C. M. Pilcher, for intervenor.
   Land, J.

The plaintiff, Olive Abston, instituted this suit for the purpose of having herself recognized as the lawful surviving wife of John Abston, deceased, late of the parish of Carroll, in this State, and as such declared entitled to a portion of the property of his succession. And her son, John N. Abston, the issue of her marriage with John Abston, deceased, joined in the action for the purpose of having himself recognized as the legitimate son, and lawful heir to the estate of his deceased father.

The suit is against Rebecca Wright, the third wife of John Abston, deceased, and the administrator of his succession, who has intervened in his capacity of tutor, on behalf of Nancy Nix Abston, the minor child of the defendant, the issue of her marriage with the deceased, and has claimed on behalf said minor, the rights of a legitimate and forced heir in the succession of the deceased ancestor.

The defendant, Rebecca Wright, pleads in general denial, and especially avers that she was lawfully and properly married to John Abston, deceased, in Warron county, in tho State of Mississippi. And that if tho plaintiff’s alleged prior marriage was ever contracted, it was unknown to her, and to all other persons residing in the said State of Mississippi.

In a supplemental answer, she avers that John Abston, deceased, made, in the State of Mississippi, his last will and testament, by which he bequeathed to her all pf his property, after the payment of his debts, and that said will has been duly admitted to probate in the parish of Carroll, in this State.

It appears from the evidence, that John Abston intermarried with Olive Hart, his first wife, and the plaintiff in this suit, in the State of Alabama, and that John N. Abston, the co-plaintiff, and other children, were the issue of that marriage. That John Abston abandoned his family in the State of Alabama, and without having been divorced a vinculo matrimonii, from his first wife, contracted ' a second marriage with Susan Bell, in Warren county, in the State of Mississippi. That after the death of his second .wife, still being uudivorcod from his first, he intermarried, in the same county and State, with the defendant, Rebecca Wright; and within a short period thereafter, removed to the parish of Carroll, in this State, where he acquired a new domicil, and where he died, and where the whole property of his succession, movable and immovable, was situated at the time of his death.

And it further appears, that John Abston, deceased, made his last will and testament in the State of Mississippi, and bequeathed to Rebecca Wright, as his wife, the whole of his estate after the payment of his debts, and that this will has been probated, and ordered to be executed in Carroll parish in this State.

It is contended, that the will of the deceased having been duly probated and ordered to be executed by a court of competent jurisdiction, cannot be collaterally questioned, and its validity inquired into in this suit.

’Phis position is not tenable; the decree 'of a Probate Court, ordering a will to be executed, does not amount to a judgment binding on those who are not parties to it; and when the will is offered as the title in virtue of which property is claimed or withheld, its validity may be inquired into. Sophie v. Duplessis, 2 An. 724; Succession of Dupuy, 4 An. 570.

The will of tho testator is in the nuncupative form under private signature, and is attested by only three witnesses. It is unnecessary to determine what effect the testator’s change of domicil to this State, where a different law prevails, had as to tho validity of his testament; because, as the Jaw of Mississippi prescribing tho forms and solemnities to be observed in the making of last wills and testaments, has not been offered in evidence, the validity of tho testament in question must be determined by our own law, which requires the attestation of five witnesses residing in the place where the will is received.

As tho testator’s will is invalid for the want of tho necessary number of witnesses under our law, he must be considered as having died intestate, and the legal rights of the parties to his succession, determined, independently of any testamentary disposition.

By what law, then, are these rights to be determined — the law of Mississippi, where the marriage of the defendant and the deceased was contracted, or by the law of Louisiana, where the intestate had his domicil at tho time of his death, and where his succession was opened, and where his property, movable and immovable, was situate ?

The plaintiff contends, that the right of succession in this case of intestacy, must bo determined by the law of Mississippi. The statute law of that State is not in evidence, but this court will judicially notice the fact, that the common law is the basis of the jurisprudence of said State.

The prior marriage of the deceased with the plaintiff, which remained undis' solved, was a legal disability under the common law, which made his marriage with the defendant, Rebecca Wright, not merely voidable, but void ab initio, and the issue of their marriage illegitimate, and incapable of succeeding by inheritance, to the estate of any one. Blackstone’s Com. 436, 459.

By the law of this State, the disability of a prior marriage undissolved, also renders the second marriage null and void ; but the legal consequences of a marriage void ab initio, under our law, are very different from those under the common law. The Civil Code declares that: The marriage which has been declared null produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith. If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.. Arts. 119 and 120.

As the good faith of the defendant, Rebecca Wright, in contracting marriage with John Abston, deceased, is not questioned, and cannot be on the evidence in the record, the determination of her rights, and those of her minor child, are dependent on the decision of the question, whether the law of Mississippi or the law of Louisiana, is the rule by which those rights are to be adjudged.

Mr. Justice Story, in his work on the Conflict of Laws, says : “ The universal doctrine, now recognized by the common law, although formerly much contested, is, that the succession to personal property is governed exclusively by the law of the actual domicil of the intestate at the time of his death. It is of no consequence, what is the countoy of the birth of the intestate, or of his former domicil, or what is the actual situs of the personal property at the time of his death: it devolves upon those who are entitled to take it, as heirs or distributees, according to the law of his actual domicil at the time of his death.” He further says, in speaking of the descent and distribution of real estate, as governed by the lex rei sita: “ Foreign jurists generally, although not universally, maintain the same doctrine; and accordingly, hold, that in eases of succession ab intestato, we are to ascertain the persons who are to take the inheritance by the lex loci rei sita, -whether the question respects legitimacy, or primogeniture, or right of representation, or proximity of blood, or next of kin. Conflict of Laws, $ 481, 484.

If we are to ascertain the persons who are to succeed to the succession of the deceased, by the law of this State, we find that the wife de facto in good faith, and the issue of her marriage, are placed on an equal footing with the lawful wife, and the issue of her marriage; for the law expressly declares, that a void marriage shall produce its civil effects as to the parties, or party, in good faith, and the children born of the marriage; and among these civil effects must be included the right of succession on the part of the children, and a right to one-half of the community of acquets and gains on the part of the wife; and wo are, therefore, bound to recognize these civil effects of the marriage of the defendant with John Abston, deceased, and to enforce the same in this suit.

The law which regulates the right of succession makes no distinction between persons who have contracted marriage in, or out of this State; nor between the issue of such marriages, whether born within or without the State. If they possess the qualities required by the law in matters of inheritance, they will be recognized as the legal heirs, without regard to the place of marriage, or birth.

In two cases somewhat similar to the present, it has been held that each wife was entitled, at the death of the husband, to one-half of the community property after the payment of debts, and this rule will govern cur decision in this case. Patton v. Philadelphia, 1 An. 98. Huhbell v. Inkstein, 7 An. 252.

The judgment of the lower court awards to each of the wives one-half of the whole succession of the deceased, including the separate property of the husband, and is erroneous in this respect. The issue of the marriages of John Abston with Olive Hart, and with Rebecca Wright, are entitled as legitimate children, and heirs-at-law, to succeed to the separate property of their deceased father, in equal parts, as if they had been born of the same marriage.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed, and that the verdict of the jury be set aside; and it is now ordered, adjudged and decreed, that the plaintiff, Olive Abston, be declared entitled to one-half of the community property in the succession of John Abston, deceased, after the payment of debts, and that the defendant, Rebecca Wright, be declared entitled to the other half of said community property. And it is further ordered, adjudged and decreed, that John N. Abston, the co-plaintiff and that Nancy Nix Abston, the minor represented by the intervenor, be recognized as heirs-at-law to the separate property or estate of their deceased father, John Abston. And it is further ordered and decreed, that the defendants pay the costs of the lower court, and that the costs of this appeal be paid one-half by the plaintiff, Olive Abston, and the other half by Rebecca Wright, the defendant.


text:
    Mary Jane McQueen v. Wm. Sandel.
    Where tlie averments in a petition amount to an acceptance of a succession, the plaintiff is estopped from contesting a valid title derived from the person to whom he succeeds ; he is the warrantor of the title.
    Parol evidence is admissible to prove the contents of an instrument of partition, after the opposite party has been served with notice to produce the missing document, if in his possession, and after the loss of it has been advertised in a newspaper and an affidavit made by the party offering to introduce it, that he has not been able to find the document after diligent search.
    In an action brought by a child to recover property which has been sold by his father, before he can be allowed to prove that his father has defrauded him of his legitime by simulated sales of his property, simulation must be alleged in the petition, and the simple allegation that defendant knowingly and tortiously detains from plaintiff, without any legal right, lands which plaintiff has inherited from his father, will not be sufficient.
    A child and heir of a party to a simulated sale is, only exceptionally and in a limited sense, entitled to assume the position of a third person in relation to it.* His action, to be relieved from it, must be declaratory of the simulation.
    PPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.
    D. C. Hardee and Bowman & Delee, for appellant.

      Hardesty and Kern an (& Hudson, for defendant.
   Buchanan, J.

This is a petitory action instituted by plaintiff, as sole heir of her father Murdoch McQueen, and of her aunt, Flora McQueen.

Defendant holds an undivided half of the land claimed by a sale dated 2d May, 1831, from plaintiff’s father. As the averments of the petition amount to an acceptance of the succession of her father,' plaintiff is estopped from contesting a valid title derived from her father. On the contrary, she is in law the warrantor of that title. Carraby v. Gravier, 17 La. 132.

To escape this dilemma, the counsel of plaintiff urge her claim upon a title not set up in her petition, to-wit, as heir of her grandfather, Donald McQueen. But she could not have inherited from her grandfather, who died before her birth, leaving two children him surviving', to-wit, the father and aunt of plaintiff.

The locus in quo was possessed by Donald McQueen and his descendants from 1804 until 1831, when plaintiff's father conveyed it to defendant’s vendor. If, in point of fact, the title of the United States to this land was never divested until the Act of Congress of 1846, (a point not necessary to examine); when it was so divested in favor of the heirs of Donald McQueen, the title which then vested in the latter enured to the benefit of those to whom the grantees had previously conveyed it. 14 An. 199.

We have seen that the proof of the alienation by Murdock McQueen is direct. The deed of conveyance from Murdock to Coulter and Fair, of the 2d of May, 1831, embraces (among a variety of other property) the right, title and interest of the grantor in two tracts of land, described in certificates Nos. 207 and 208 of the Register and Receiver of the Land Office in St. Helena. That right, title and interest appears, from the evidence in this cause, to have been one undivided moiety of each tract, the other undivided moiety being at the date of said conveyance vested in Flora McQueen, the co-heir with the grantor, of their father, Donald McQueen.

On the 3d of May, 1833, Flora McQueen sold to John L. Lobdell, the whole tract of land described in the certificate No. 208 above mentioned. 'In the deed of sale, the vendor declares that the tract of land thus sold “ was allotted to her in a partition between said Flora McQueen, James Fair and James H. Coulter, known in said amicable partition as lot No. 1, claimed by the heirs of Donald McQueen in virtue of certificate No. 208, dated August 31st, 1828, and signed by Samuel G. Reynolds, Register, and William, Kinchen, Receiver, the said certificate having been acquired by purchase from Wm. Brandon, who appears from the certificate to have been the original settler, beginning at Alexander Scott’s corner, &c.”

It appears from this instrument, that in May, 1833, Flora McQueen disposed, as of a thing to her appertaining in entirety, of the tract of land contained in certificate 208 ; although, two years previously, her brother and co-heir had disposed of the undivided half of the same tract of land to Coulter c6 Fair. Hence the apparent necessity of her enunciation, in the deed of conveyance to Lobdell, of the title by which she had acquired the right, title and interest of her brother and of bis vendees, Coulter & Fair, in the land sold, to-wit, a partition made amicably between herself and the said Coulter & Fair. Miss Flora McQueen describes herself in the deed to Lobdell, as of full agé; consequently, the partition could have been made, as declared by her, without authority of justice.

Now, the tracts of land severally described in certificates 207 and 208 are of the same extent, six hundred and forty acres, and adjoin each other ; and as the loss of the instrument of partition declared by Flora McQueen is satisfactorily and legally proved, it might perhaps have been inferred, without further proof, that in the partition in kind of the two tracts, by which the tract 208 had been allotted in entire to Flora McQueen, the tract 207 had also been allotted in entire to the other co-partner, Coulter & Fair. But this matter does not rest upon inference. After serving, plaintiff with notice to produce the missing document, if in her possession; after advertising the same in a newspaper ; and after affidavit made by defendant, that ho had not been able to find the said document, after diligent search ; the testimony of John L. Lohdell, the purchaser from Flora McQueen of the tract No. 208, was taken to prove the contents of the said instrument of partition. A bill of exceptions was reserved by the counsel of plaintiff to the admissibility of Mr. Lohdell’s testimony ; but we are of opinion, that the District Judge did not err in admitting the same. The defendant had laid a proper basis for the admission of parol proof of the contents of the lost or missing document.

The testimony of Mr. Lohdell is positive, that the partition spoken of in the deed from Flora McDonald to witness, was produced before the Notary and parties ; and that said partition embraced the tract contained in certificate No. 207 (which is claimed in this suit), as well as that contained in certificate No. 208 ; both of those certificates being held previously, in indivisión, by the heirs of Donald McQueen. This testimony is corroborated by the fact that Flora McQueen lived for seven years after this sale to Lohdell, and that she never made any claim to the laud held by defendant and his vendors. Neither does it appear that Coulter <& Fair, or either of them, over asserted any claim to the land certificated No. 208, under the conveyance from Murdock McQueen to them of his interest in said certificate. We conclude that the title of Flora McQueen in the land claimed herein, is legally vested in defendant.

There are eleven bills of exception to rulings of the court upon questions of evidence, in this record, all taken by plaintiff. On examination, we concur with the District Judge in all of those rulings. None of the bills of exception require any further remarks at our hands, éxcept those which refer to the rejection of evidence offered by plaintiff to prove simulation in the conveyance from her father to Coulter & Fair. It is unnecessary for us to decide whether the plaintiff has brought herself within the rule which permits a child to plead and prove simulation of the contracts of its parent, to the prejudice of its rights as forced heir. The reason given by the District Judge for rejecting the evidence is amply sufficient, to-wit, that the plaintiff has not pleaded simulation of her father’s contract. She simply ignores that contract, by allegations that defendant knowingly and tortiously detains from plaintiff, without any legal right, land which plaintiff has inherited from her father and aunt, deceased.

This is not a sufficient allegation upon which to let in proof that plaintiff’s father has defrauded her of her legitime, by simulated sales of his property. It may be that a simulated sale produces no effect against third persons. But a child and heir of a party to such an apparent sale is only exceptionally, and in a restricted sense, entitled to assume the position of a third party in relation to it. His action, to be relieved from it, must be declaratory of the simulation. Otherwise, ho recovers upon grounds not alleged, and even inconsistent with those which are alleged; which would be a surprise upon his adversary, the more especially to be avoided when, as in the present case, there is do pretence that the defendant was a party to the simulation and fraud.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the verdict of the jury, bo avoided and reversed ; and it is further decreed, that there be judgment against plaintiff, and in favor of defendant, with costs in both courts.

Merrick, C. J., recused himself, having been professionally consulted in the cause.


author: Merrick, C. J.

text:
    W. H. Garland v. Estate of W. S. Scott.
    Whore a suit is brought on a due bill signed by an agent, and the answor specially denies tho agency, the agent, on being released from personal responsibility by the plaintiff, may bo heard as a witness to prove the faetthat the money borrowed, for which tho due bill was given, was applied to tho payment of the debts of his principal.
    Equity obliges the proprietor, whose business has been well managed, to comply with the engagements contracted by the manager {negotiorum gestor) in his name, and to indemnify him in all personal engagements he has contracted in the management of his affairs.
    Tho action arising out of a quasi contract, like the action of mandate, partnership and negotiorum gestor, is prescribed by ten years.
    A due bill is a mero acknowledgment of a debt, and the promise to pay money being only implied, it does not fall within the definition of a promissory note, and cannot bo prescribed as such by five
    Statutes of prescription and limitation cannot be extended from one action to another, nor to analogous cases beyond tho strict letter of the law.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Short & Parham and L. M. Day, for plaintiff and appellant.

      Sparrow S Montgomery, for defendant.
   Merrick, C. J.

This suit is brought upon an instrument in these words :

“ Due Wm. H. Garland, Esq., nineteen hundred dollars, borrowed money. New Orleans, July 22d, 1853.
“§1900. (Signed) Wm. S. Scott, U. S. M.
Chas. A. Labuzan.”

The defendant, the administratrix of Scott, denies, in her answer, the agency of Labuzan to borrow money and sign the due bill, and avers that he had no authority to perform said acts ; she denies, generally, each and every other allegation in the petition, and pleads the prescription of throe and five years.

The intestate, W. S. Scott, was the Marshal of the United States for the Eastern District of Louisiana, from 1849 to 1852, inclusive. Consequently, his office had expired when the due bill was given.

In 1849, Scott, as Marshal, appointed Labuzan as his principal deputy, and executed a power of attorney, wherein, among other things, he authorized him to make checks and draw money out of any bank or banks, to deposit funds and bills of exchange, &c., in any bank, and withdraw the same, and “ to adjust, settle and liquidate all accounts, and also to pay olf and discharge all claims and demands whatever, outstanding and existing against said constituent.”

Labuzan was released by the plaintiff, and his deposition subsequently taken, was offered to prove that he acted as the chief deputy of Scott; that he acted under the power of attorney ; that he continued to act nearly two years after Scott’s office had expired, in settling up the old business ; that he signed the note under the power of attorney; that the proceeds of the note were applied to the payment of Scott’s liabilities as Marshal, and in settlement of moneys collected under execution; that §1,200 were applied to an execution and §700 for rent ; that the money was borrowed at two several times, and all embraced in one bill of 22d July, 1853 ; that he managed the collections and disbursements of the office as chief clerk, and was the head of all the business.

This testimony was objected to on the grounds, among others, that no evidence could be received to add to the power of attorney, already offered in evidence, and that the evidence touching the uses which wore made of the money alleged to have been borrowed, was inadmissible under the pleadings ; that the plaintiff having declared upon a note, cannot be allowed to prove any right or demand beyond it.

It appears to us, that the testimony was admissible under the issue in this case. The defendant, in her answer, as already said, specially denied that Labuzan was the agent of said Scott, in borrowing money and in signing the due bill sued on, and averred that he had no authority.

This issue made it important to the plaintiff to show that the money was borrowed for Scott and applied to the payments of his debts.

Again : if it be assumed that the power of attorney is at all doubtful, the construction put upon it by one of the parties with the implied consent of the other, furnishes a rule of interpretation. C. 0. 1951.

The testimony having been properly received, we will proceed to consider the other questions in this case.

It is objected in this court, that the instrument sued on does not purport to have been executed by Labuzan as Scott’s agent. It is true that the usual words indicating agency, such as “ per,” “ by,” or “ for,” are not used in the due bill, but it is alleged in the petition, that it was so executed, and the answer impliedly admits that the instrument was intended to bind Scott through the agency of Labuzan, and the proof establishes the allegation in the plaintiff’s petition.

It is further objected, that the power of attorney did not authorize the agent to borrow money or acknowledge a debt, because it was not express and special, and because the power of attorney had ceased when the office of the Marshal, to which it had relation, terminated.

It may, perhaps, be doubted whether the terms “ to adjust, settle and liquidate all accounts, and also to pay off and discharge all claims and demands whatever, outstanding against said constituent,” with the acts of the parties under the same, is a sufficient proof of authority to sign the due bill. But whether it were or not, will not vary the result of the case, for the proof legally admitted in this case, shows that the plaintiff’s money enured to the benefit of the intestate. The case, then, presents this dilemma : the due bill was either signed with the authority of Scott, or it was not. If signed with his authority, his estate is bound by the terms of the due bill. If not, then the estate is bound, under the action de in rem verso, for money turned to the use of the intestate, under the equitable maxim “ Neminem opportet alteráis damno locitpletari,” (Dig. 50,17, 206, De regulis juris; ibid, 3, 5,10,) and under Articles 2278 and 2279 of the Civil Code, which are in these words :

2228. Equity obliges the proprietor, whose business has been well managed, to comply with the engagements contracted by the manager (negotiorum gestor) in his name; to indemnify the manager in all personal engagements he has contracted, and to reimburse him all useful and necessary expenses.”
“ 2279. He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”

It being thus shown that the plaintiff has a cause of action, it remains to be seen whether it is barred by the plea of prescription of three and five years.

The plea of prescription of three years, cannot prevail, because if Labuzan had no authority to borrow money as alleged by the defendant, then the action is not an action for money lent, because Scott did not borrow the money, and tbe parties were in error, and for the same reason, it was not a matter of account, for there were no mutual dealings between Scott and the plaintiff', and the latter only intended to part with his money upon the security of the obligation of the former. See Taylor & Hadden v.

The action, according to the defendant’s version of the affair, arises out of a quasi contract, and like the action of mandate, partnership, or negoüoram gestorum, is prescribed by ten years.

If we consider tbe instrument executed by Labuzan, as a. valid instrument, as alleged by plaintiff, it is not prescribed, because it is but a mere acknowledgement of a debt, and not a promissory note. There is no express promise on the face of the instrument to pay money. It leaves the law to imply the promise from the indebtedness acknowledged. See Story on Promissory Notes, sec. 14; Ohitty on Bills, p. 130, eleventh American from ninth London edition.

As the instrument sued upon does not fall within the definition of a promissory note, it cannot be considered as barred by the Act of 1852, for statutes of prescription and limitation, are not extended from one action to another, nor to analogous cases beyond the letter of the law. Trop. 658; Linton v. Wikoff, 12 An. 886.

The supposition that the contract was immoral, cannot avail the defendant. For if Scott had illegally used money collected on execution, as surmised by counsel, it did not make a subsequent contract to borrow money to replace that so used, illegal.

The testimony of Labuzan is sustained by corroborating circumstances.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed ; and that there be judgment in favor of the plaintiff against the said defendant, in her capacity of administratrix, of the Succession of William S. Scott, deceased, in the sum of nineteen hundred dollars, with five per cent, interest thereon, from the 22d day of July, 1853, until paid, and to be paid in due course of administration. It is further ordered, that said succession pay the costs of both courts.

Duffel, J., took no part in this case.


author: Yoorhies, J.

text:
    State of Louisiana v. Slave George.
    Confessions made by an accused to the persops who arrested him, and who were not public officers, are not admissible in evidence against him.
    Confessions made under such circumstances are not admissible even when, in a case of larceny, the person to whom they are made is directed by the accused to the place where the stolen goods arc to be found, and ho finds thorn in the place designated • the fact of finding the goods may be taken into consideration by the jury, hut not the admission of the accused that he had stolen and put them there ; this fact must be collected from the circumstances of the case.
    APPEAL from Justices Court, Parish of Iberville.

      T. /. Semmes, Attorney General, for State.

      Samuel Flower, for defendant and appellant.
   Yoorhies, J.

The prisoner is appellant from a judgment sentencing* him to death.

The information filed in the inferior court, contains two counts; the first for the crime of arson, and the second for the crime of larceny. Two distinct substantive offences, growing, in all probability, from the same circumstance or transaction, have thus be joined or cumulated in the information. The date of the commission of both offences corresponds, and they appear to have had for their object the property of the same person.

Our attention is called to a bill of exception, taken by the prisoner, to the ruling of the Magistrates with regard to the admissibility of his confessions, made under the influence of promises and threats. The Magistrates state that the witnesses, who procured the confessions, were not public officers, nor were they the owners or Overseers of the slave George; that they arrested the accused, however, and that it was on this emergency that the latter confessed his guilt.

The rule of law is not so restricted in this respect. “ In regard,” says Green-leaf, “to the person by whom, the inducements were offered, it is very clear, that if they were offered by the prosecutor, or by his -wife, the prisoner being his servant, or by an officer having the prisoner in custody, or by a Magistrate; or, indeed, by any one having authority over him, or over the prosecution itself, or by a private person in the presence of one in authority, the confession will not be deemed voluntary, and will bo rejected.” Greenleaf’s Evidence, sec. 222 ; Arch. Pleadings, p. 128.

Private individuals are allowed, in some cases, and required in others, by the law, to arrest offenders without a warrant of justice. The witnesses, who arrested the prisoner, must be viewed in no other light than as public officers for the time being ; they unquestionably were, by arresting him, exercising legal authority on his person. So that the confession made to them by the prisoner, under the inducements held out, cannot be considered as voluntary. Arch. Criminal Pleadings, vol. 1, p. 125.

The bill of exceptions states further, that “ following the confessions, the things stolen were found.” This does not affect the question of the admissibility in evidence of a confession of guilt.

“ In such case, the most that is proper to be left to the consideration of the jury, is the fact of the witness having been directed by the prisoner where to find the goods, and his having found them accordingly ; but uot the acknowledgment of the prisoner having stolen or put them there, which is to be collected or not from all the circumstances of the ease ; and this, adds Mr. East, is now the most common practice.” Eoscoe Ev. 47.

So much of the declarations of the slave George, as led to the discovery of the stolen goods, was properly received ; but his confession of guilt, procured through inducements held out to him by those who had arrested him, and had him in their custody, should have been excluded. The bill of exception seems to ignore this distinction. No discrimination was made on this subject by the Magistrates in overruling the prisoner’s objection; no alternative is, therefore, left but to remand the case for a new trial.

It is proper to call the attention of the special tribunal, to the irregularity of inserting, in the same information, two offences, distinct in character, although arising most probably from the same transaction — the crimes of arson and larceny. Evidence of the commission of the latter, may prove the felonious intent, which is an ingredient of the former, if the two acts can be connected together ; but, between the two offences, the State should elect upon which to prosecute.

It is, therefore, ordered and decreed, that the verdict of the jury and judgment of the special tribunal, be avoided and reversed, and that this case be remanded for a new trial, and for further proceedings according to law.


text:
    John Bishop, Use of Levee Commissioners, v. Henry Marks et al.
    Tho Act of Congress of Februaiy 20th, 1811, exempting land sold by Congress from taxation for five years from tho date of the sale, has no application to lands donated by tho General Government to this State, and sold by the State.
    The proceeding by mandamus, must be conducted in the name of the State, upon the petition and oath of the party entitled to relief ; it cannot be demanded by way of answer to a suit brought to collect money.
    The decision m the case of Louis Selby v. Levee Commissioners, 14 An. 435, affirmed.
    PPEAL from the District Court of the Parish of Carroll, Farrar, J.

      II. Short, for plaintiffs.

      Louis Selby, for defendants and appellants.
   Merrick, C. J.

This is another of the numerous cases growing out of tho assessments for levee purposes, in the district formed of the parishes of Carroll, Madison, and Catahoula. Although brought upon a bond, it presents, with but little variation, questions heretofore decided by us, and one question formerly abandoned in argument by the counsel who now urges the samo, as “ the main point in this suit.”

This last question is supposed to arise upon the construction of the Act of Congress of February 20th, 1811, (2 Stat. at Large, p. 642, sec. 3,) which provides : “ That each and every tract of land sold by Congress, shall be and remain exempt from any tax laid by order, or under the authority of the State, whether for State, county, township, parish, or any other purpose whatever, for the term of five years from and after the respective days of the sales thereof.”

The land was sold by tho State Register, at Bator, Rouge, in September, 1856, and, it is contended, that the five years mentioned in the Act have not run.

it is manifest that the Act of Congress has no application to this case, for the lands in question have not been sold by Congress. This sale was made by the State of Louisiana, of lands belonging to her. The condition upon which the lands were donated to her, were, that the proceeds of the said lands should be applied exclusively, as far as necessary, to the construction of levees and drains. Act of March 2,1849 ; Phillips’ Dig. Ixxxviii, see. 3.

The tax assessed was for the furtherance of the objects Congress had in view by the donation. So long as the defendant possesses under his title acquired of the State, it does not lie in his mouth to deny ownership.

Again : it is urged that the statement made, on which the fourth point in the. case of Lewis Selby v. The Levee Commissioners, 14 An. 435, was decided, is erroneous. If we had said tho citizens of Catahoula are obliged to protect themselves from overflow upon the alluvial lands of the tributaries of Red River, it would liave been more accurate ; but it is difficult to perceive how this correction cau influence the result of the argument, so long as it is admitted that there are alluvial lands in Catahoula which are to be protected by levees.

There is also a prayer in the answer for a mandamus against the Levee Commissioners, to compel them to assess the lands between 1he Bayou Macon hills and Brsuf River.

This is irregular and inadmissible. The proceeding by mandamus is conducted in the name of the State, upon the petition and oath of the party entitled to relief. O. P. 829, 840. It cannot be demanded by way of answer to a suit for money, because it cannot be considered as connected with, and it forms no defence to the same.

In regard to the other questions presented in this case, we see no reason to doubt the correctness of our former conclusions. The safety and security of a large and populous portion of the State, depend upon the maintenance of sufficient public levees. These cannot be kept in a safe condition without means raised by assessments upon the persons and property protected by the levees. After witnessing the incalculable advantages which this district has enjoyed from the levee system, it is difficult to account for the constant assaults upon the constitutionality of laws by which alone the system is maintained. To succeed in these attacks, would be almost as disastrous to the inhabitants of the district, as to annihilate the levees themselves.

Fortunately, however, the investigation of these questions has not brought the court to the conclusion, that the Acts of the Legislature which have been prepared and amended with great care and consideration, are in conflict with the Constitution of the State. The organic law is not, in this regard, opposed to the welfare of this large district.

Judgment affirmed.

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


text:
    Sarah B. Graham, Tutrix, v. Charles J. Hester.
    The tutor has a right to compromise respecting the rights of his ward, but ho must act under the authority of the Judge, granted on the advice of a family meeting ; such a contract may be made for the purpose of preventing a lawsuit, as well as to put an end to one already instituted.
    A compromise made by the tutor without the authorization of the Judge, given by and with the advico of a family meeting, may be treated by the minor as an absolute nullity ; but when it is made in pursuance of these legal formalities, the minor cannot, upon becoming of age, treat it as an absolute nullity.
    Under these circumstances, if the contract be voidable, he must resort to a direct action to have it rescinded; lie caunot question its validity collaterally, — and the tutor who has made the contract himself, cannot treat it as a nullity. Quere: Could the tutor in such a case institute the action of nullity ?
    APPEAL from the District Court of the Parish of Madison, Farrar, J.

      W. T. Harrison, for plaintiff and appellant.

      A. R. Hynes, for defendant. Short & Parham, for warrantor.
   Voorhies, J.

The plaintiff, in her own right as widow in community of E. S. Graham, deceased, and in her capacity of tutrix of their minor child, Jane Graham, claims to be the owner of a tract of land now hold by the defendant, Charles J. Hester. The latter derives his title, through several mesne conveyances, from the deceased, E. S. Graham. The question to be determined is, consequently, whether this title is a valid one.

After the death of E. S. Graham, the property in dispute was not inventoried ; but a family meeting was convoked for the purpose of advising as to the interest of the minor with regard to a claim set up to this property by one James Forbes. It appears, from the petition presented to that effect before the Probate Court, that, in consideration of Forbes’ entering some public land in the name of Graham, the latter had agreed to transfer to the former the tract now in dispute ; that Forbes had complied with the terms of the agreement, but that Graham had died before being able to comply on his part. The petition sets up the willingness of the deceased to fulfill his contract, and his death-bed request to his friends, that the title should be given to Forbes. Evidence of these facts, (parol evidence, it is true,) was given to the family meeting ; and for the purpose of preventing-all litigation upon this subject, the meeting advised that it was to the interest of the minor that title should be made out in the name of James Forbes. The court thereupon homologated the proceedings. Some time afterwards, Mrs. Graham, the tutrix of her minor child, upon the eve of leaving the State, executed, by notarial act, a power of attorney to Josiah Stanbrough, constituting him as her agent in the tutorship, and authorizing him to execute a title to James Forbes. In that deed, she admits “ Forbes’ purchase and entry in the name of Elijah 8. Graham., of eighty acres of other land embraced in- the inventory of the succession,” and that this entry had been made in exchange for the land, which she now claims.

With regard to the undivided half of the widow in community, it is evident that these proceedings are a complete bar to the present action. The only serious question concerns the minor’s right as affected by the compromise made by her tutrix.

The right of a tutor, under Articles 348 and 3039 of the Civil Code, to compromise respecting the rights of his ward, cannot be doubted ; but he must act under the authority of the Judge, granted on the advice of a family meeting. Such a contract may be made -for the purpose of preventing a lawsuit, as well as of putting an end to one already instituted. 0. C. Art. 3038. If the advice of a family meeting, or the authorization of the Judge, has not been procured, the contract may be treated by the minor as an absolute nullity, unless he prefers, upon becoming sui juris, to ratify the agreement. C. C. 2252; 2 An. 648 ; 3 An. 330.

But when the contract has the authorization of the court, based upon the approbation of the family meeting, the minor himself cannot, upon becoming of age, treat it as an absolute nullity. If the contract be voidable, he should resort to a direct action for the purpose of having it rescinded; he cannot question its validity collaterally. If this be true of the minor himself, the objection is fully as fatal to the tutor who attempts to treat as an absolute nullity a compromise made by himself on behalf of his ward, with the authorization of a family meeting, homologated by the court. Besides, it is a question, by no means free from difficulty, whether the tutor could, in such a case, institute the action of nullity. Upon this point, however, we express no opinion.

In the case under consideration, the consent of the family meeting, and the homologation of the proceedings by the court are shown. The Court of Probates, although it had not jurisdiction in cases of land suits, was the only court to which a tutor could apply for the purpose of compromising upon the rights of his ward; and the decree given by that court for the purpose of enabling the plaintiff, as tutrix of her minor child, to prevent a litigation between her and James Forbes, is a judgment, which she cannot question collaterally, and still less disregard. She has instituted a petitory action without even alluding to these proceedings; her action, so far as the rights of her minor child are concerned, is therefore, irregular.

Under this view of the case, it is needless to express any opinion as to the validity of the proceedings had in the succession of E.' S. Graham, deceased, and their effect upon the rights of the minor, Jane Graham.

It is, therefore, ordered and decreed, that the judgment of the District Court he avoided and reversed; that there be judgment in favor of the defendant against the plaintiff, in her individual right, for one undivided half of the land in controversy ; that there be judgment of nonsuit for the other undivided half thereof, against the plaintiff, in her capacity of tutrix of her minor child, Jane Graham ; that the costs of the court below be borne by the plaintiff, and that the costs of appeal be borne, one-half thereof by the defendant, and the other half by Sarah B. Graham individually.