text:
    HAWES vs. BRYAN.
    Eastern Dist.

      June, 1836.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    The wife may at any time demand administration of her paraphernal property and the restitution of the objects forming that property.
    A receipt of the wife under private signature, that she has received her paraphernal effects from her husband, given when a suit for a divorce was pending between them, will not operate against third persons, or creditors, when there is no proof of its execution.
    •This is an action to recover a paraphernal right of the defendant’s wife in his hands, as evidenced by his receipt for the sum of five hundred and sixty-six dollars and thirty-nine cents, received from her mother’s estate.
    The plaintiff alleges he purchased this right at sheriff’s sale,'under two executions against Elizabeth Hawes, wife of the defendant, which were levied on this in the hands of William Bryan, her husband, who acknowledged he had received this sum, as per her receipt dated the 24th March, 1830, and annexed to the petition. It is as follows:

      “ Baton Rouge, March 24th, 1830.
    “ On final settlement with William Hawes, attorney in fact for the heirs of the late Sarah Hawes, deceased, I acknowledge to have received the sum of four hundred and eighty-five dollars and twenty-one cents, in cash, and thirty-five dollars in a receipt from M. Chambers, for a saddle furnished E. Hawes; also fortv-six dollars and eighteen . " ... Y cents, on account of the Florida claim, which several sums amount to my full share of said estate.”
    “ELIZABETH HAWES,”
    “ By WILLIAM BRYAN.”
    The defendant pleaded a general denial, and that he was not indebted to his wife for her paraphernal effects at the time the plaintiff purchased, having paid her as evidenced by her receipt, dated the 14th of May, 1834. He further avers, that if he ever was indebted, as alleged, (which he denies) to his wife, he is not bound to pay the same until a dissolution of the marriage, or separation of property. That the wife could not enforce this claim until then, and the plaintiff can have no greater right than she had.
    The following is the receipt annexed to the answer :
    “ East Baton Rouge, May 14th, 1834.
    “ Received of William Bryan, five hundred and two dollars and thirty-seven cents, in cash and on account of moneys he has paid for me (viz : thirty-five dollars to William Hawes, for one saddle ; eighteen dollars to. William Hawes, for D. Hawes; and eleven dollars and some cents, making in all the full amount of my paraphernal property, and one bed and furniture.)”
    “ELIZABETH BRYAN.”
    In January, 1834, Mrs. Bryan instituted suit against the defendant, her husband, for a separation of bed and board, and for a divorce. This suit was discontinued, by her order, on the third of June following, and judgment for costs was rendered against her, for one hundred and sixteen dollars and twenty cents, in favor of her husband, on which execution issued.

      The plaintiff produced in evidence the record and judg-rnents against Mrs. Bryan, together with the sheriff’s deed of sale, of her paraphernal effects, under and in pursuance of them, and purchase by the plaintiff. 1 J 1

    The district judge, to whom the cause was submitted, was of opinion that the receipt of the husband for the wife’s paraphernal effects, could only be evidence for her of her claim against her husband, but she could sustain no action on it, unless under the circumstances mentioned in article 2399 and 2400 of the Louisiana Code, and that the plaintiff had no greater rights. That by the article 2407 of the Louisiana Code, the creditors of the wife cannot, without her consent, obtain a separation of property between her and her husband, except in cases of failure.
    Judgment was rendered for the defendant and the plaintiff appealed.

      Elam, for the plaintiff.

      Conrad, for the defendant.
   Bullard, J.,

delivered the opinion of the court.

Several judgments having been recovered against Elizabeth Hawes, the wife of the appellee, an execution was levied on certain paraphernal rights of the wife in the hands of her husband, as evidenced by her receipt for $ 566 39, on account of her mother’s estate; and the appellant, William Hawes, became the purchaser at sheriff’s sale. The present suit is instituted against the husband, to compel payment to the purchaser of the amount specified in the receipt.

The defence set up, is, in substance, that the wife herself could not recover, during the existence of the marriage, without a decree for the separation of property, and that the plaintiff can have no greater right. He further pleads payment to his wife, as evidenced by her receipt, bearing date in May, 1834.

The District Court dismissed the suit, on the ground that the wife herself • could not recover the amount of her paraphernal rights without obtaining a separation of property, or showing the existence of some of the circumstances mentioned in articles 2399 and 2400 of the Louisiana Code. Those articles of the Code point out the cases in which a wife is entitled to a general separation of property on account of the disorder of the husband’s affairs and the dangers of her dotal rights. But this court held in the case of Gilbeau vs. Cormier, 8 Martin, N. S., 231, that the wife may at any time demand the administration of her paraphernal properly, and the restitution of the objects forming that property. This right is given by article 2368, of the Louisiana Code.

The wife may, at any time, demand the administration of her paraphernal property, and the restitution of the objects forming that property.

A receipt of the wife, under private signature, that she has received her Feetsf^Vom1 her husband, given when a suit ior á divorce was Sn^wiil^not ÍSi^perXsm-creditors, when ofeíts execution!

The evidence under the plea of payment consists of a . r _ \ . t . receipt purporting to be signed by the wife under private signature, at a time when a suit was yet pending between them for a separation from bed and board, and for a divorce 1 ’ _ for the alleged adultery of the husband. There is no other evidence of payment, nor is the real date of the receipt shown. Being under private signature, it has no certain date as to third persons; and being produced under such circumstances, we think it ought not to operate against the plaintiff,

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed ; and proceeding to give such judgment, as, in our opinion, ought to bave been rendered below, it is further adjudged, that the plaintiff recover of the defendant five hundred and sixty-six dollars and thirty-nine cents, with legal interest from judicial demand, and costs in both courts;


source: Caselaw Access Project

author: •Mathews, J.,

license: Public Domain

text:
    YARBOROUGH vs. PALMER.
    EASTERN Ur ST.

      June, 1836.
    APPEAL FROM THE COURT OF TIIE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    ON A REHEARING.
    In. a possessory action, a plea in reconvention involving title, will be disregarded; but the right of the defendant in such cases, to attack the title of the plaintiff in a direct action, will be reserved.
    In. a possessory action, a plea in reconvention involving title, will be disregarded ^ but the right of tire defendant, in such •cases, to attaek the title of the plaintiff* in a direct action, will be reserved.
    . This case came before the Supreme Court, then sitting'at Baton Rouge, at August term, 1834. It is a possessory action, in which the court refused to act on a plea in recon-vention, set up in the answer of the defendant, and involving the question of title to the premises in controversy. The court, in the opinion herein pronounced, reviewed their former decision. See the case reported in 7 La. Rep., 153. •

      Andrews, for the plaintiff.

      JBoyle and Turner, contra.

   •Mathews, J.,

delivered the opinion of the court.

This case was decided at the August term of the court, held at Baton Rouge, in 1834, and is now before us on a rehearing. In the decision rendered, we considered the action as exclusively 'possessory, and gave judgment in favor of tlie possessor, Yarborough, who had held the property in dispute, peaceably, and under color of title, for more than one year previous to the institution of the present suit.

This view of the cause was taken notwithstanding a plea in reconvention, which had a direct tendency to bring into litigation (he title of the plaintiff who had been in possession a length of time sufficient to support his possessory action. In the judgment then rendered, we reserved the right of the defendant to litigate as to title by a direct action. The suit in reconvention was not in so many words ordered to be dismissed, but the reservations of the defendant’s right to attack the title of the plaintiff in a direct action, virtually abolished all the proceedings in the case which involved questions as to title.

We think the judgment pronounced, as above stated, was correct. It is, therefore, ordered, that it remain undisturbed.


author: Bullard, J,

text:
    RABY vs. BARTON.
    Eastemt Dist.

      June, 1836.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE , JUDGE OF THE EIGHTH PRESIDING.
    The District Court has jurisdiction of a suit on an administrator’s or curator’s bond, against the surety as well as the principal.
    This is an action instituted against one John Holston, as administrator of the estate of a deceased brother, to render him individually liable, as well as the defendant, who is his surety for the sum of $ 1800, which the plaintiff alleges is due him by said estate, on several promissory notes. He further alleges, that the administrator has been guilty of gross mismanagement of said estate, and has failed to render an account of his administration; whereby, both him and the defendant, his surety, are liable, individually, for his said debt. He prays for judgment against them accordingly.
    The defendants answered separately, excepting to the jurisdiction of the District Court, and averring that the matters set forth in the petition were exclusively cognizable in the Court of Probates. That the plaintiff should have presented the notes on which his claim is based, to the Probate Court, and first had them allowed as a claim against the estate, before coming against the administrator.
    The District Court has jurisdiction of a suit, on an administrator’s or curator’s bond, against the surety as well as the principal.
    The surety further averred, that the first of said notes was prescribed by lapse of time; and that the action being founded on the law of quasi offences, is barred by the lapse of one year; wherefore he pleads the prescription of one and five years, &c.
    On these issues and pleadings the parties went to trial. The District Judge was of opinion, that the law and evidence was sufficient to enable the plaintiff to recover against the administrator, but not against the defendant as his surety. Judgment was rendered against Holston for the sum claimed, and in favor of thé defendant. The plaintiff appealed.

      Andrews and Lawson, for the plaintiff.

      Boyle, contra.

   Bullard, J,

delivered the opinion of the court.

This suit is brought against one of the defendants to render him liable for mal-administration of an estate of which he had been appointed administrator, and against the other, as his surety on his bond, given to the parish judge, conditioned for the faithful administration of the estate.

Judgment was rendered against the principal, who appears to have acquiesced, but an exception set up by the surety to the jurisdiction of the District Court was sustained, and the suit being dismissed as to him, the plaintiff appealed.

The only question presented in this case has been several times decided by this court, to wit: that the District Court has jurisdiction of a suit upon an administrator’s or curator’s bond against the surety. This was settled in the case of Elliott vs. White, 5 Louisiana Reports, 322, and again, at the present term, in the case of Ingram vs. Stokes, ante 26.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, so far as it relates to the surety, be avoided and reversed; that the exception to the jurisdiction be overruled, and that the case be reinstated and remanded for further proceedings according to law, the costs of the appeal to be borne by the appellee.


author: Bullard, J.,

text:
    ROGERS ET AL. vs. VANLANDINGHAM.
    Eastern Dist.
    June, 1836.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where a debtor transfers a promissory note to his creditors for collection, the latter are held to account for it, at its full valúe, at the time of the transfer, estimating the principal and interest accrued, according to the place where it is made payable. If any loss is sustained in computing or proving interest, the creditor must bear it.
    This is an action to recover the balance of a mercantile account, amounting to three hundred dollars and seventy-seven cents, instituted by the late firm of Rogers, Slocumb & Co. against the defendant. It was commenced by attachment, in the parish of East Baton Rouge, the defendant residing in the state of Illinois.
    . The account is admitted, but various matters are set up in ' defence, the most material of which is the transfer of a certain note which he avers the plaintiffs collected and which was fully sufficient to extinguish the debt due to them by him.
    The material facts and points of this case are fully stated and set forth in the opinion of the court.
    The plaintiffs had judgment for the full amount of their claim and demand, from which the defendant appealed.

      A. AT. Ogden, for the appellant.
   Bullard, J.,

delivered the opinion of the court.

"This is an action to recover a balance alleged to be due by the defendant, on an account for goods sold and delivered, together with interest, according to an alleged custom of merchants. The sale and delivery of the goods are proved, and sundry credits are allowed.

The defendant admits that he was indebted in account about five hundred and fifty three dollars and twenty-three cents; but that he transferred to the plaintiffs a note of one Gilbert, of Illinois, in full discharge. That the amount of the note was three hundred and fifty dollars, with interest which had accrued on it at the time of the transfer, amounting to two hundred and seven dollars and eight cents, thus exceeding the amount of the account about three dollars. That the plaintiffs sued Gilbert and recovered the principal of the note and the interest, or a part thereof, and that the judgment has been paid and satisfied. That if they did not recover the full amount of the interest, at six per cent, from the time the note fell due, according to the laws of Illinois, it was their own fault. He further alleges that a sum of one hundred and seventy dollars paid them by Mr. Eon, for him, and for which he is credited, was paid in error, and he claims judgment in reconvention for said sum and the balance on the note of three dollars and eighty-six cents.

It appears that the note in question was assigned to the plaintiffs, who recovered the amount from the drawer, with legal interest, according to the laws of Louisiana. They credit the defendant with only two hundred and ninety-six dollars and forty-four cents, the net amount. There is no evidence to show that the plaintiffs took the note in full discharge of the account, nor is it shown, on the other hand, that the collection of it was to be made at the expense of the defendant. We think the defendant was entitled to a credit for the value of the note at the time it was transferred to the plaintiffs, including the interest legally due upon it. But the note does not show on its face, at what place it was executed or was payable. It appears, however, from the judgment of the Parish Court of New-Orleans, rendered in favor of the plaintiffs against the maker, that it was shown to have been executed and payable in the state of Illinois, where, according to the evidence in the record, the interest on promissory notes, after they fall due, is six per cent. In the Parish Court this evidence was not given, and the court was not satisfied with the proofs, that by the law of Illinois, the obligor was bound to pay interest from the time the note fell due. The defendant argues that the plaintiffs had it in their power to furnish satisfactory evidence on that point, as he has done in this case, by an exemplification of the statute of that state regulating'interest; and that if they relied on parole evidence, which was held insufficient, it is their fault, and he ought not to suffer, as he had no notice of those proceedings. This position we think correct, and that the plaintiffs ought to account for the note at its real value, as now shown by legal evidence. The defendant does not appear to dispute the interest, as he admits in his answers, that interest was due at the time the note was transferred.

Where a debt- or transfers a promissory note to his creditors for collection, the latter are heíd to account for it, at its full value at the time of the transfer, estimating the principal, and interest accrued, according to the place where it is made payable. If any loss is sustained in computing or proving interest, the creditor must bear it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, and proceeding to give such judgment as ought, in our opinion to have been rendered below, it is further adjudged and decreed, that the plaintiffs recover of the defendant the sum of forty dollars and twenty-one cents, with costs in the District Court, the costs of the appeal to be paid by the plaintiffs and appellees.


text:
    DAVIDSON vs. STUART ET AL.
    EASTERN DlST.
    June, 1836.
    APPEAL PROM THE COURT OP THE THIRD JUDICIAL DISTRICT, TIIE JUDGE OP THE EIGHTH PRESIDING. ■
    Property purchased during marriage, although it be conveyed to the wife alone, makes part of the community of acquests and gains.
    The wife cannot bind herself as co-obligor conjointly with her husband, oí-as surety for the price of property purchased by her with her husband’s consent, during the. existence of the community, although the title and conveyance are made in her name.
    This is an action on the following promissory note, to recover the amount from the makers thereof:
    “On the first day of January, 1833, we promise to pay to Moses Moore, or bearer, the sum of three hundred and ten dollars, with ten per cent, per annum, until paid. Value received this 29th day of June, 1830.”
    “JAMES D. STUÁRT,
    MARY STUART.”
    “Secured by mortgage on a plantation, by act of mortgage of this date, November 24th, 1830.”
    “JESSE R. JONES, Parish Judge.”
    The defendant, Mary Stuart, answered separately, and averred, that when she signed the note sued on she was a married woman, and that it was given for a debt of her husband’s contracting, which is not such an obligation as she is bound by law to pay; that she only signed the note as surety of her husband, which, by law, she could not do; it not being for a debt of her own, but of her husband’s contracting. She prays to be dismissed.
    Judge Jones, whose testimony was taken under a commission, testified, that the note sued on was given in part of the price of a tract of land purchased from Moses Moore, and that the act of sale was a conveyance-from Moore and wife to Mary G-. Stuart, the defendant, with the authorization of her husband; that, judging from the act of sale, the note was not given as security for her husband, but for a purchase of her own.
    The defendant, James D. Stuart, let judgment go by default; but from the judgment rendered against Mary G-. Stuart, she appealed.

      Jl. JV*. Ogden, for the plaintiff,
    prayed for the affirmance of the judgment appealed from. He contended it was in accordance with previous decisions, and cited the case of Sprigg vs. Bossier and wife, 5 Martin, JV*. S., 54.

      Brunot, for the appellant,
    contended, that the evidence showed that the wife signed the note sued on while a married woman; and, it is not shown, that the debt was for something which the husband was not bound to furnish.

      2. If a purchase in the name of the wife, with the authorization of her husband, could of itself bind her, the provisions of law which secure to the wife her separate property, would be of no avail.
    3. The wife cannot bind herself for a debt of her husband; and to give to the form of the contract a character to bind her, is not sufficient, unless it is shown that it turned to her own separate use and advantage, which is not the case here.
   Bullard, J,

delivered the opinion of the court.

This is an action upon a promissory note, signed jointly by the defendants, who, it appears, are husband and wife. The latter pleads that she is not liable, because she signed the note as security for her husband, and not for her own benefit.

It is shown that the note was given for part of the price of a tract of land purchased by the wife herself, with the consent of her husband.

It is clear the defendant is not bound, unless it be §hown that the contract turned to her advantage, and was for something which the husband was not bound to furnish. Such has been the uniform decision of this court, in relation to the engagements of married women. 7 Martin, N. S., 64.

Property purchased during’ marriage, although it be conveyed to the wife alone, pakes part of the community of ac-quests and gains.

The wife cannot bind herself ¡as co-obligor •conjointly with her husband, or .•as surety for the price of property purchased by hob with her husband’s consent, during the existence of the community,although the title and conveyance are made in her ¿iame.

■ It appears that the conveyance was made to the wife alone; and the Code declares, that the 'community of acquests and gains is composed, among other things, of the estates which husband and wife may acquire during marriage, either by donations made jointly to them both, or by purchase, or in any similar way, even although the purchase be only in the name of one of the two, and not of both, because the time when the purchase was made is alone attended to, and not the person who made the purchase. Louisiana Code, article 2371. If the land became at once the property of the community, and the husband alone bad a right to alienate it, then the price which they promised to pay was a debt of the community. In the case of Sprigg vs. Bossier and wife, 5 Martin, N. S., 54, this court said arguendo, “it is true the benefits of a purchase made by the husband may be shared by the wife, but it is not true that she becomes the owner of the property; for, he may sell it, exchange it, or even give it away without her consent. Had her name been inserted in the'act of sale, she would have held one half of the land in her own right. It could not have been alienated without her consent, &c.”

The latter part of this sentence does not appear to us to apply to such a case as the present, because the Code declares positively, that which ever of the parties makes the purchase during the existence of the community, the property purchased belongs to the community. The land for the price of which the note was given, is liable to be sold to pay the price, even without any judgment against the wife, there being .already a judgment against the husband from which no appeal has been taken. But, we are of opinion, the plaintiff lias not established by evidence, the legal liability of the wife.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, against Mary D. Stuart, be annulled and reversed; and ours is in her favor, as in case of a non-suit, .together with the costs of this appeal.


text:
    BARREMORE’S SYNDIC vs. BRADFORD’S HEIRS.
    EASTERN DlST.
    June, 1836.
    APTEAL FROM THE COURT OJ? THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    It is not necessary that the citation of appeal be served within the year allowed to appeal in. If the appeal is taken and bond given within the year, although the citation be served after it has elapsed, but in time for thé term of the court, it will be sufficient.
    An agreement made by a debtor with a part of his creditors, entered into by notarial act, in which he makes an assignment of his property to certain individuals, as trustees, for the benefit of such creditors as' sign ' the agreement, does not constitute these persons syndics; nor does it confer power on them to maintain an action for the recovery of property alleged to belong to said debtor, but not mentioned in the act of assignment.
    In a daiion enpaiement as well as in a sale, a fixed price is of the essence of the ¿contract.
    The plaintiffs, W. W. Williams, B. Hawes and N. Bolles, sue as the assignees and syndics of W. H. Barremore, in virtue of a notarial act of agreement of the latter, assigning various property for the benefit of such of his creditors as signed the said agreement, to recover a tract of land in the parish of West Feliciana, in the possession and claimed by the defendants. -
    The defendants excepted to the right of the plaintiffs to maintain, this action, because W- H. Barremore is not a ceding debtor, and consequently his syndics, if any he has, cannot institute this or any other suit for him, or in his name, for any immoveable property which he may have assigned to his creditors; and further, the defendants except to the jurisdiction of the District Court, because the rights of minors are concerned, which matters are exclusively cognizable in the Court of Probates. They also answered to the merits.
    The district judge overruled the exceptions, and, on the merits, there was a verdict and judgment in favor of the defendants. The plaintiffs appealed.

      It is not necessary that the citation of appeal he served within the year allowed to appeal in. If the appeal is taken and bond given within the year, although the citation be served , after it has elapsed, but in time for the term of the court, it will be sufficient.
    The judgment appealed from was signed the 2d of May, 1833, and the appeal was granted the 15th of April, 1834, but service of the citation and petition of appeal was not made on the tutor of the defendants (minor heirs) until the 22d of May, 1834, and on the under tutor, the 12th of June, 1834.

      Patterson, for the appellees,
    moved to dismiss the appeal, on the ground that the service of the citation, &c. of appeal was not made until after the lapse of a year from the date of the judgment appealed from.

      Lawrence and Wintkrop, contra.

   Bullard, J.,

delivered the opinion of the court.

In this case the appellees move to dismiss the appeal, on the ground that service of citation was not made within a year after the judgment was rendered. It appears that the appeal was allowed, and the bond filed within the year, but the citation was served after it had elapsed, but in time for the term of the court to which the appeal was made returnable, and that a proper return day was fixed by the judge. We think this is sufficient, and that the Code does not forbid the service of citation after the year, if the appeal has been taken in time. The motion is overruled.

The plaintiffs assuming to be the assignees and syndics of one Barremore, instituted the present suit to be recognized as owners of a tract of land in possession of the defendants, and of which the latter, it is alleged, claim to be proprietors, thereby slandering the title of the plaintiffs.

The defendants excepted to the capacity in which the plaintiffs appear, alleging that Barremore is not a ceding debtor, and denying that the petitioners are his syndics and have any right to maintain this action.

In support of their right to sue, the plaintiffs produced in evidence an instrument under private signature, which appears to have been registered in the office of a notary public in New-Orleans, purporting to be signed by Barremore and numerous persons styling themselves his creditors, in which it is recited, that they having received and accepted of him an assignment of his property as therein described, Barremore sellas, assigns and transfers, in the manner of a dation en paiement, to Williams, Hawes, and Bolles, the plaintiffs, assignees nominated by said creditors, all his stock r ? 0 J in trade, notes, debts and accounts, together with such property, personal and real, as he possessed, &c., to be vested in said assignees for the benefit of the aforesaid creditors who ° shall sign the act: the assignees to sell the property under the direction of the creditors; the confidential debts to be first paid out of the proceeds. In consideration of the premises, the creditors agree to give Barremore a complete discharge. It is further agreed, that other creditors may, within four months, sign the agreement and avail themselves of its stipulations. They then appoint the plaintiffs . . , , . .. . assignees to manage the estate thus surrendered, as if they were syndics regularly appointed.

An agreement made by a debt-his creditors1 en-teredmtobyno-tanal act, . in which he makes his^property1 to tortees" for the benefit of sign the agree-^nstitute^these persons syndics; nor does it eon-fer power on anTcüon forthe recovery of property alleged to belong to said míntíonedinSie ^ntof aasi=n"

In a datum en payment, as well as m a sale, a fixed price is of ^ contact °f

It is obvious that this agreement between Barremore and , . . a part of his creditors does not constitute the plaintiffs his syndics. The tract of land which forms the subject of this controversy is not described in any part of that document, nor is there any price stipulated; and in a dation en paiement, as well as sale, a fixed price is of the essence of the contract, * Juerlin’s Repverbo dation en paiement. We are therefore of opinion, that a title did not vest in the plaintiffs as assignees, so as to enable them to maintain the present action. They are, at most, agents of the persons who signed that agreement in relation to -the administration of the effects assigned by Barremore to them. The agreement contemplates a distribution of the property of an insolvent, first to what are called his confidential creditors, a distribution unknown to the laws of this state, and this court cannot lend its aid in giving effect to such ail agreement. The exception ought therefore in our opinion to have been sustained.

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


author: Mathews, J.

text:
    COX vs. BETHANY.
    Eastern Dist.

      June, 1836.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, TIIE JUDGE THEREOF PRESIDING.
    The presumption that the holder of a note made payable to bearer, or endorsed in blank, when made in negotiable form, is the rightful owner, is prima facie evidence of title in such holder, in ordinary cases, and yields only to contrary proof.
    But the presumption of title in the holder of a note ceases when he is one of two or more co-obligees, because they cannot all possess the note individually.
    Notes or instruments made payable to two or more payees or obligees, held by one of them, he must be considered as holder for all, unless it be shown he has acquired by transfer, the rights of his co-obligees.
    An assignment of errors cannot be made against the allegations in the petition which may have been supported by legal evidence. They must, when there is no statement of facts, nor evidence produced, or in the record, be taken as true in such cases. 1
    A new trial should not be granted on an affidavit of newly discovered evidence since the first trial, when the facts disclosed relate to matters which have not been pleaded.
    This is an action founded on two promissory notes, amounting to one thousand two hundred and twenty dollars, bearing interest at the rate of ten per cent, per annum from their dates respectively until paid, and made payable to “Elizabeth Cox, (plaintiff,) Thomas Bills, and Elizabeth Bills, or bearer, and signed by Matthew Bethany, the defendant.
    The plaintiff sues alone as holder of the notes, and alleges that the defendant is indebted to her in the amount of said notes and interest, for which she prays judgment.
    The defendant excepted to the action, first, that he had no legal notice, having contracted no such obligation as mentioned in the citation; second, that one of the owners of the notes sued on was a, feme covert, and had not been authorized to bring this suit by her husband, &c. These exceptions were overruled and the decision of the court excepted to.
    An answer was filed, denying that the plaintiff, Mrs. Cox, was the lawful owner of the notes mentioned in the petition, and averring that creditors in an obligation not in in solido, but barely holding the obligation, does not constitute one of them sole creditor; that it is necessary to be assigned and transferred by all the other creditors, which is not done in this case, &c.
    Judgment was rendered in favor of the plaintiff for the amount of her demand.
    The defendant moved for a new trial, because the judgment was against law and evidence, and made a motion to amend it on the ground of newly discovered evidence. He alleges in his affidavit, that Mr. Bills, the former husband of the plaintiff, died, and left a will bequeathing the very land for which the notes in suit were given, to Mrs. Cox, (plaintiff,) for life, and at her decease to go to their two children; that this land was the consideration for which the notes were given ; and that since the trial he had discovered that Thomas Bills and Elizabeth Bills, two of the payees of the notes, had never parted with their interest therein. This motion and affidavit were overruled,' the opinion of the court excepted to, and the defendant appealed.
    T. L. and S P. Andrews, for the plaintiff.

      Lawson, for the defendant,
    contended the judge a quo erred in refusing the motion to amend the application for a new trial, on the ground of newly discovered evidence, and on filing the affidavit of the defendant. 2 Martin, N. S., 626. 1 Ibid., 541.
    2. The judgment is erroneous, because when an obligation is made in favor of several persons in solido, proof of an assignment and transfer is necessary to entitle the holder to recover. Louisiana Code, article 2083. 7 Louisiana Rep., 1<S1,_

      The presumption that the hoi-der of a note, ™earer’ayót>leen-dorsed in blank, when made m negotiable form, owner, is’frimi fade evidence of title m suck hoi-der, in ordinary only to'ctntraiy P™of-
    , But the presumption of title a' n'ote^ceases, when he is one of two or more co-obligees, be-not all possess duallyte indm”
    Notes^ or in-payable to two oro™Ugees,aheid by one of considered as unless1' fit ai>e shown he has acquired by transfer, the rights of
    be madea»Snst the allegations width may have byeaiegaiP°eld-denee. They is no statement dence^produced in the record, be such cases.
   Mathews, J.

delivered the opinion of the court.

This suit is on two promissory notes, made payable to the plaintiff and two other persons, or hearer. The contract is joint in relation to the obligees, but the notes being in the possession or custody of the petitioner, she assumes the entire r . . _ , . , T1 , ownership of them m the present action as bearer. Judgment was rendered in the court below for the whole amount claimed jn t[le petition, from which the defendant appealed, *

. , , _ . . ,,. , . The answer contains a denial of the right of the plaintiff to recover the whole amount of the notes, having only a i0jnt interest in them with other persons who have not trans-J . . y TT ferred to her their title and interest in these obligations. Her counsel seems in argument to rely on the legal presumption by which holders of notes made payable to bearer, or J r endorsed in blank when made m negotiable form, are considered as the rightful proprietors of such instruments,

This presumption amounts'to primh facie evidence of title r r ^ r ¿ in the holders of such instruments in ordinary cases, and yields only to contrary proof.

But it appears to us that the same presumption ought not to be recognized as prevailing in a case like the present, when one of the co-obligees is the holder or possessor of the notes. Here we find three. They could not all hold and possess the same things at the same lime in their integrality. Instruments of this kind, held by one of the parties for whose joint benefit they may have been made, must be considered as bolder for all, unless it be shown that the holder has acquired by transfer the rights of his co-obligees.

This case, however, cannot be examined on its merits, f^ere being no statement of facts or assignment of errors; and if the latter had been made, we could not assume any thing against the allegations of the petition which may have been supported by evidence, for they must be presumed to have been true, as the judgment of the court below is legal and correct only on this presumption; and here the maxim, omnia recte acta, is applicable. The defence in this court is therefore stripped of all its force, except two bills of exception; one of these was abandoned in the argument, and the other cannot be supported either on principles of law or rules of practice established to aid in the administration of justice. This exception is to the opinion of the judge a quo, by which he overruled a motion made on the part of the defendant to . 1 . obtain a new trial. The motion is based on an affidavit of the discovery of new evidence. The facts said to have been discovered after the trial of the cause, would be applicable only to a new defence, which was not pleaded, viz: want of consideration for the promise. Now, it appears to us, that it would be to extend the doctrine and principles of new trials to an unreasonable length, if they were to be granted both to amend pleadings and let in new evidence. .

A new tl.;ai fcdavit of newly cience since the fh^facte’disoio-sed related to have not been pleaded.

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


author: Bullard, J,,

text:
    NEWPORT vs. COOPER ET AL.
    Eastern Dist.

      June, 1836.
    APPEAL PROM THE COURT OP THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOP PRESIDING.
    The receipt of the receiver of public moneys for government lands is evidence sufficient to show that the title is out of the government.
    The proceedings of the board of land commissioners, adjudicating on donation claims to land, where they reverse and annul a certificate previously granted by the board, recognizing the donee’s claim, will not he received as evidence against such certificate.
    The court will presume that a certificate, given by the board of land commissioners, in relation to a claim to government land was issued in pursuance of the provisions of law, and entitles the holder to a patent when its conditions are complied with.

      The register and receiver, when acting as land commissioners, for the adjustment of claims to public land, have full judicial authority to act in cases of conflicting locations under different certificates, but are not authorized to revoke or annul a certificate of a claim already granted.
    This is a petitory action, in which the plaintiff claims one hundred and sixty acres of land, now in the possession of the defendant, Cooper.
    The plaintiff alleges he purchased said land from the government of the United States, as evidenced by the receipt of the receiver of public, money at St. Helena, dated the 16th day of November, 1831.
    The defendants pleaded a general denial. They aver, that should it appear that any of the land claimed by the plaintiff is in possession of the defendants, it makes part of a donation of six hundred and forty acres granted to William Cooper, by several acts of Congress, passed for the adjustment of titles to lands lying West of Pearl River, &c.
    The plaintiff produced the receiver’s receipt for the purchase money of the land claimed by him, dated November 16th, 1831.
    The defendants offered in evidence the following certificate in support of the averments in their answers :
    “William M. Cooper vs. Littleton & Packer: Land Office, St. Helena, November, 10th, 1826.
    “ In this case much evidence has been submitted by the defendants, going to show that the government has been defrauded, or would be by allowing Cooper a donation ; and Mr Cooper has not introduced any evidence to show that the place now claimed by him is the place on which he attempted in 1808, to make his etomahawk improvementnor has he shown, that he at any time made such a settlement or improvement as the law contemplates should hold. land. We are therefore of opinion that William M. Cooper has not shown by evidence that he is entitled to lands as a donation from government, but feeling disposed that every one applying shall have strict justice done them, so far as we can judge, we allow William M. Cooper, until the first day of March next, to establish his claim by Spanish documents or otherwise ; at which time, if he fails to do so, we will recall this certificate, granted to the said William M. Cooper: It is, therefore, ordered, adjudged and decreed that this accession be made a record of this board. Given under our hands, date above written.”
    “SAMUEL RUNNELLS, Register,”
    “WM. KINCHEN, Receiver.”
    “Land Office, St. Helena, La., March 1st, 1827.”
    “ The evidence called for to establish the claim of William M. Cooper, not having appeared satisfactory to the board, the judgment of November 10th, 1826, is this day made final.”
    “SAMUEL RUNNELLS, Register.”
    “ WM. KINCHEN, Receiver.”
    “ William M. Cooper. Certificate No. 476, dated 22d, September, 1826. Land office, St. Helena, 31st May, 1830. William M. Cooper claims a section of land situate in the parish of East Baton Rouge, in virtue of certificate No. 476, and dated as above, signed by Samuel Runnels, register, and William Kinchen, receiver : It appearing to the satisfaction of the undersigned that no conflictions exist, therefore ordered that the same be surveyed and located as follows: to begin at a bay tree, on the bank of the river Comité, and run northerly, and afterwards such courses and distances as to make a form something like a mile square, and so as not to include more than six hundred and forty acres, there being no interfering private claims. Given under our hands, at St Helena, this 31st day of May, 1830.”
    “ THO. G. DAVIDSON, Register.”
    “ A. G. PENN, Receiver.”
    This order of survey was never executed. '
    Parole evidence was introduced by the plaintiff to show the location of his purchase from government. The witnesses declared that it included Mr. Cooper’s improvement and house, as claimed by him under the donation certificate. This testimony was objected and excepted to by the defendants’ counsel.
    A bill of exceptions was taken by the plaintiff’s counsel to the introduction of the certificates and proceedings of the land commissioners in evidence, because they purport to be adjudications between different parties than those of the present suit, &c.
    Judgment was rendered for the plaintiff decreeing him the land he claimed, and quieting him in the possession thereof. The defendants appealed.

      Jlndrews, for the plaintiff.

      Elam, for the defendants.
   Bullard, J,,

delivered the opinion of the court.

This is a petitory action, in which the plaintiff sets up title to one hundred and sixty acres of land in the parish of East Baton Rouge, in virtue of a purchase from the United States. The defendants deny that they are in possession of any land for which the plaintiff has a just and legal title; but they aver that if it should appear that the land claimed by the plaintiff, or any part thereof, is in their possession, the same makes part of a donation of six hundred and forty acres granted to the defendants by the several acts of congress, passed for the adjustment of land claims west of Pearl River and east of the Island of Orleans. That p certificate was regularly granted, on a favorable report made of the same to congress, which was confirmed and subsequently an order of survey given, and that the plaintiff cannot have any legal title to said land.

This answer substantially denies that the title set up by the plaintiff covers the land in possession of the defendants, and alleges title to the land thus possessed; in other words, the locus in quo is not admitted.

Judgment was rendered in favor of the plaintiff, and the defendants appealed.

The receipt of pubHo moneys dss°vfsni^vi^ dence sufficient to show that the title is mu of the S'ovei'nmcnl-

The proceed-sioners, adjudi-eating on donation claims to ^verse^nd^n-nul ? certificate previously granted by the board, donee’s c&]a¡m, ^cd0\ge dence against

The evidence in support of the plaintiff’s title consists of a receipt of the receiver of public moneys, of the price of the land sued for, and this court has often held that sufficient to show title out of the government. But the defendants allege possession under a certificate of confirmation by the register and receiver, at St. Helena, which the plaintiff avers was revoked and annulled by a decision of that board, and in support of that allegation, gave in evidence a document . , ’ , . . , „ purporting to be a copy of a decision made by those officers in a case of William Cooper vs. Littleton & Packer, in which it is recited that much evidence had been introduced to show that the government has been defrauded or would be by allowing Cooper a donation, and that Cooper had not introduced any evidence to show that the place claimed by him is the place on which he attempted, in 1808, to make his tomahawk improvement, nor that he had shown himself entitled any where to a donation by making a settlement or improvement as contemplated by law. But they allow him further time to introduce evidence of his right, which if he fails to do they declare that they will recall the certificate granted to said Cooper. This order was made in November, 1826, and on the 1st of March, 1827, they say that the evidence not having been furnished, their previous judgment is made final.

The introduction of this document in evidence, was opposed on the ground that it purports to be an adjudication between different parties, and that it is not legal evidence for any of , . i . ° ... the purposes for which it was offered, to wit, either to prove the locality of the land, the locality of the certificate revoked by the commissioners, or the possession of the land J , 1 by Cooper. These objections being overruled a bill of exceptions was taken.

We are of opinion that the court erred in admitting this document for any other purpose than to prove the transaction itself, rem ipsam, and that it ought not to have any effect in the decision of this case.

We are to presume that the certificate in question was issued in pursuance of the provisions of law relative to the adjustment of land titles in that part of the state, and that the holder was entitled to a patent when it should appear to the satisfaction of the commissioners of the, general land .office that the certificate has been fairly obtained, according to the intent and meaning of this act, &c. Land Laws,p. 762.

The court will presume, that a certificate given by the board of land commissioners, in relation to a claim to government land, was issued in pursuance of tlie provisions of law, and entitles the holder to a patent, when its conditions are complied with.

The register and receiver, when acting as land 'commissioners for ‘the adjustment of claims to public land, have full judicial authority to act in cases of conflicting locations under different certifi-estes but Rpe not authorized to ^certificate™1*! claim already granted.

This act of congress appears to leave it to the discretion and sound judgment of the commissioners whether to grant or to withhold a patent on the presentation of certificates; but it does not authorize the register and receiver to revoke or annul a certificate already granted. The judicial authority of those officers, which was fully recognized by this court in the case of Boatner vs. Ventress, 8 Martin, N. S., 645, is confined to cases of conflicting locations under different certificates. Land Laws, page 824, section 4.

But the defendants show that afterwards the register and receiver, who succeeded to the powers of the former ones, recognized the validity of the certificate in question and ordered its location in a particular manner. This order of survey was previous to the purchase made by the plaintiff from the United States. But no survey of either claim is presented to the court, and the parole evidence is too vague and unsatisfactory to enable us to decide upon the principal . , * question in the cause. Neither party exhibits a patent, and certificate shown by the defendants, is of older date than the purchase of the plaintiff. There ought, in our opinion, , 1 , 1 , , , ° , , to have been a survey under the orders of the court, to show the confliction, if any. If it should appear that the location,as ordered by the register and receiver under Cooper’s certificate, covers the - land possessed by him and embraces his improvements, and that it is the same land which the plaintiff has purchased, the question will yet remain open, which party has the best title.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and it is further ordered, that the case be remanded for a new trial, and that the appellee pay the costs of this appeal.


text:
    MARSHALL vs. OVERBAY ET AL.
    Eastern Dist.

      June, 1836.
    ArPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    A mairied woman is incapable of contracting a new obligation in favor of a creditor without tho consent of her husband, bj waiving notice of demand and protest as endorser,- even when she had endorsed the note before marriage.
    This is an action by the plaintiff as assignee of the following promissory note against the defendant, Overbay, as endorser, and also, against the maker of said note. The plaintiff alleges, that Matthew Joyner is liable as the maker, and that Elizabeth Overbay, (then Elizabeth Boyd,) as endorser, together with her husband, Henry Overbay, are also liable, (the said Elizabeth having expressly waived protest and notice of the non-payment thereof,) wherefore he prays judgment against said defendants in solido.

    The defendants pleaded a general denial. Upon these issues and pleadings the parties went to trial.
    The plaintiff offered the following note and letter in evidence.
    “$349 33. July 15tb, 1831. On the first day of April next', 1832, I promise to pay Elizabeth Boyd, or order, the sum of three hundred and forty-nine dollars and thirty-three cents, with ten per cent, interest, from the time due un til-paid; for value received,”
    “MATTHEW JOYNER.”
    (Endorsed) “Elizabeth boyd.”
    “West Feliciana, February, 1832.”
    . “Whereas, I am an endorser on a certain promissory note of hand, dated on the 15th July, 1831, drawn by Matthew Joyner, in my favor, and payable on the first day of April, 1832, for the ,sum of three hundred and forty-nine dollars and thirty-three cents, and bearing ten per cent, interest from that time until paid. I do hereby waive the necessity of a demand, and consider myself as equally bound as though a legal demand and protest had been made.”
    “ELIZABETH OVERBAY.”
    Since the endorsement and transfer of the foregoing note, and before the waiver of protest, as above, the defendant was married to Henry Overbay, who is made a defendant with her in this case.
    The cause was submitted to.a jury, who returned a verdict in favor of the plaintiff. Judgment being rendered thereon, the defendants appealed.

      Boyle and Turner, for the plaintiff,
    contended that the waiver of the defendant was sufficient to dispense with notice of protest. She was not precluded by any law from doing so.

      Bradford, contra.

    The judgment must be reversed, because there was no protest and notice given to the defendant, as endorser, by which she can be made liable as such.
    2. The defendant being a married woman, could not validly waive notice of protest without the authorization of her husband.
   Bullard, J.,

delivered the opinion of the court.

The opinion we have formed upon the merits of this case, according to the evidence in the record, makes it unnecessary for us to decide upon a bill 'of exceptions to which our attention was called in the argument, relating to the right of the defendant to amend after the trial had commenced.

The defendant, who is a married woman, is sued as endorser of a promissory note. She endorsed the note in question before her marriage, but afterwards, and before its maturity, it is alleged she waived the necessity of a demand, and agreed to consider herself equally bound as though a legal demand and protest had been made. At the time she gave this consent she was married; and there is no evidence in the record to show that her husband consented to this modification of her original engagement. The defendant, and her husband who was joined in the suit, for answer, put in the general denial; and being comdemned to pay the note by the District Court, appealed.

A married wo-“/oontractfn^a ?ey obligation ciitor, without husband, by '™™ns notice protest, as en-whenVhehadcn-heforemaiTiage6

The effect of the defendant’s waiver of demand and protest, would be to render positive and absolute her obligation to pay the amount of the note, which was at the time of the endorsement contingent and conditional. We cannot distinguish it from the contracting of a new engagement as surety of the drawer. The plaintiff relies wholly upon this new contract, not pretending that any demand was made of the drawer and notice given to the defendant. The only question is, whether she is bound.

The general rule is, that a married woman is incapable of contracting without the consent of her husband. That consent is presumed in some cases; for example, in commercial contracts, where he permits her to trade in her own name, for necessaries for herself and family when he does not himself provide them, and to all other contracts when he is himself a party to them. Louisiana Code, article 1779. The present case does not appear to come within these principles; and without showing the consent of the husband, we are of opinion the plaintiff cannot recover. Without proof of the husband’s authorization, either express, or as implied in the cases above mentioned, the plaintiff fails to prove any contract which can be enforced in a court of justice against a married woman.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and ours is in favor of the defendants, as in the case of a non-suit, with costs in both courts.


text:
    LOUISIANA COLLEGE vs. KELLER.
    Eastern Dist.
    June, 1836.
    APPEAL PROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE ^TUDGE THEREOF PRESIDING.
    Tiie defendant subscribed five hundred dollars to a paper, in which he promised to pay this sum to any person who might be appointed to receive the same, on behalf of a college, to be established at Jackson, in Louisiana, on the express condition that the college should be established at the next session of the legislature; the legislature, at its next session, fiid establish and endow a college: Held, that the defendant was bound "by his engagement to pay the,sum subscribed by him.
    An obligation is not the less binding, although the consideration or cause is not expressed in tile instrument.
    The expectation of deriving advantage from the establishment of a college .or literary institution near one’s residence, or the desire to promote education and become the patron of letters, and such like, when the object is lawful, form a valid consideration to render a contract for the payment of a sum of money, binding.
    In contracts of beneficence, the intention to confer a benefit is a sufficient consideration.
    This is an action instituted by the trustees of the Louisiana college, .established at Jackson, in East Feliciana, to recover from the defendant the sum of five hundred dollars, .the amount of his subscription to said eollege.
    The action is brought on the following instrument of writing:
    “We, the subscribers,'agree and bind ourselves to pay the sums severally annexed to our names, to. any person or persons who may be appointed by the legislature of the state of Louisiana to receive the same, in behalf of a college, which may be established in the town of Jackson, East Feli-ciana. It is, however, expressly understoqd, that no obligation is hereby created against the ..subscribers, unless the said legislature do establish a college with an endowment, in the said town, at their next session. And, if a college be established, as aforesaid, we waive all informality in this obligation; those who subscribe two hundred dollars, or under, to pay in equal instalments of one and two years; those who subscribe over two hundred dollars, to pay the amount of their subscriptions in annual instalments of one hundred dollars, subsequent to the passage of a bill relative to said institution.” “Jackson, 6th September, 1824.”
    “ Mames. Place of Residence. Donation'.”

    “ H. Keller, Jackson, Five hundred dollars.”
    The above paper was signed by many other subscribers.
    On the 18th February, 1825, and at the next session after the defendant subscribed the said subscription paper, the legislature passed a law “To incorporate the College of Louisiana, and fop other purposes,” which located the college at the town of Jackson, in the parish of East Feliciana.
    The defendant having failed and refused to pay his said subscription, on the 18th March, 1831, a formal demand was made on him, and a protest entered on the instrument by the parish judge, acting as a notary public, for non-payment thereof.
    The defendant pleaded a general denial; that he was not bound by said instrument of writing, which is a nudempactum, given without consideration; and further, that the plaintiffs were not authorized to collect and demand payment of said money. He further pleaded the prescription of five years, and that the action on said writing is prescribed by the lapse of five years.
    The district judge, on these pleadings and issues, gave .judgment for the plaintiffs. The defendant appealed.

      Downs for the plaintiff.
    The obligation of the defendant was subject to only one condition, and that was accomplished by the act incorporating the college of Louisiana, and the actual establishment of the same at Jacksou. The obligation 0f defendant then became absolute.
    The defendant subscribed five hundred dollars to a paper, in which he promised to pay this sum to any persons who might be appointed to receive the same, on behalf of a college to be established at JT ackson, in. Louisiana, on the express condition that the college should be established at the next session of the legislature ; the legislature at its next session did establish and endow a college : Held, that the defendant was bound by his engagement to pay the sum subscribed by him.
    An obligation is not the less binding, although the consideration or cause is not ex-Kstnimenu ^

      Boyle, for defendant.
    1. The agreement of the appellant, upon which judgment was given in the court below, was an imperfect obligation, which could not be enforced in a court of justice.

      2. It was without legal and sufficient consideration to render it valid and binding.
    3. It did not become binding on the maker, for want of an acceptance of its conditions by the party to whom it was made. 1 Louisiana Reports, 190.
    4. There was no party in existence capable of accepting or enforcing its conditions.
   Bullard, J.,

delivered the opinion of the court.

This suit is brought to recover of the defendant a sum of five hundred dollars, which he promised to pay to any person or persons who might be appointed by the legislature of the state of Louisiana to receive the same, on behalf of a college which may be established in the town of Jackson, in East Feliciana. This engagement, which was subscribed by the defendant, in common with various other citizens, for different amounts, was on the express condition that the legislature should establish and endow a college at Jackson, at its next session.

The defendant, in his answers, admits that he signed the paper, as alleged, but he denies all the other allegations set forth in the petition. He denies that the plaintiffs are authorized to collect, demand or receive the amount, and avers that there is no valid and binding contract, and that his promise was without consideration and void.

The legislature did establish and endow a college at Jackson, at the session next succeeding the date of the subscription. The plaintiffs were constituted a body corporate by that act, and authorized to administer the affairs of the college, and to appoint a treasurer; and although not expressly empowered to collect the subscription in question, yet we have no doubt the intention of the subscribers was to aid in the establishment of such a college, by adding the amount of their subscriptions to such sum as the legislature might grant for that purpose.

The expeeta-iXantage^íVom ü>e lege or literary one’s^-eskience^ p^o^education and Recome ters^and °such o^tTs'te-wfuf form a valid con-render a contract sumof’moí ney binding,

iJeneficenceCttbe intention to confer a benefit, is sufficient consideration,

But the defendant seeks to avoid the payment of the sum subscribed by him, under the plea that his promise was without consideration and is not binding on him. An obligation, according to the Code is not the less binding though its consideration or cause is not expressed. We are not informed as to the consideration of this promise, by any thing on the face of the papers. It may have been 'the advantage the defendant expected to derive from the establishment of a college at his own door, by which he would save great expense in the education of his children, or it may have been a spirit of liberality and a desire to be distinguished as the patron of letters. Whatever it may have been, we see nothing illicit in it; nothing forbidden by law, and the promise binds him, if he consented freely, and the contract had a lawful object. In contracts of beneficence, the intention to confer a benefit is a sufficient consideration,

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


author: Mathews, J.,

text:
    PALMER vs. YARBOROUGH.
    Eastern Dist.

      June, 1836.

      AI'PEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The judgment of the inferior court is clearly erroneous, when founded o,n an exception not pleaded in the case by the parties.
    In a petitory action or controversy involving title to property, the pendency or judgment in another suit between the same parties, about the same property, in the nature of a possessory action, cannot be pleaded as an exception.

      This is, essential^, a petitory action. The plaintiff alleges he entered into a contract with the defendant in 1831, by which he engaged to convey to the latter a certain tract of laud described therein, on a condition precedent that the said defendant should first make a certain road and build a bridge, as mentioned in said contract, before the-day of July, then next ensuing. He further shows, that the defendant has entirely failed to perform the precedent condition of said agreement, to his damage five hundred dollars; that the defendant took possession and pretended to be the owner of said land under the contract aforesaid, and on being ousted, instituted his possessory action, and obtained judgment of possession against the petitioner, which he is now about executing: wherefore, he prays for an injunction to restrain the defendant’s writ of possession, that said contract be annulled and set aside, and that he be maintained in his possession as owner of the land in question, and that he have his said damages and costs adjudged to him.
    The defendant pleaded his judgment in a possessory action for this same land, in which he recovered the possession from the present plaintiff, and a writ of possession issued, the same which is enjoined. He prays that the injunction be dissolved, and that he be permitted- to take ,possession in pursuance of his said judgment.
    The defendant amended his answer, and pleaded, as a peremptory exception to the action, the judgment in his possessory action in the District Court, which, he alleges, is now (November, 1833,) pending on an appeal to the Supreme Court: wherefore, he prays .that the suit be dismissed. See the case of the Possessory Action, 7 Louisiana Reports, 153.
    The District Judge sustained this exception, and dismissed the plaintiff’s petition. He appealed.

      Boyle and Turner, for the plaintiff.

      Andrews, contra.

      The judgment of the inferior court is clearly erroneous, when founded solely on an exception not pleaded in the case by the parties.
    In a petitory action or controversy, involving title to property, the pendency or judgment in another suit between the same parties, about the same property, in the nature actionfeannotte pleaded as an
   Mathews, J.,

delivered the opinion of the court.

This suit was commenced in the court below, after a judgment had been rendered in a possessory action in the same court, in a suit of Yarborough vs. Palmer. That judgment was in favor of the former, and, in the present action, the plaintiff prayed for and obtained an injunction, staying the writ of possession which he apprehended might be issued against him on the judgment which had been rendered as already stated. The injunction was dissolved on the defendant’s giving bond and security, as authorized by the 307th article of the Code of Practice. The dispute between those parties relates to a tract or parcel of land, &c. In this case, the allegations of the petitioner, in addition to his prayer for an injunction, involves questions of title to the property in dispute.

The defendant pleaded, exceptions to the fact as it relates to title. The exception first pleaded is the pendency of a suit for the same cause of action in the court before which this was brought. This could not be true, because judgment had been rendered in that’ suit before the institution of the present. The defendant, however, by leave of the court, amended his answer by pleading the pendency of an appeal in the Supreme Court, in relation to the former suit. The court below dismissed this suit after a hearing on the exceptions, and the plaintiff appealed.

The reasons given for dismissing are not founded on either of the exceptions pleaded by the defendant, but the court, in its opinion, seems to have assumed an exception not pleaded, viz: res judicata. The judgment of the lower court is clearly erroneous, being founded solely on an exception not pleaded; and we are of opinion that it cannot be supported by either of the exceptions as they appear in the answer; not by the first, as it has no foundation in fact, for, at the time of filing it, there was no suit pending in the District Court, judgment having been then already rendered.

The pendency of the appeal we also consider as affording no ground for the dismissal of the present action.

That appeal was taken from a judgment pronounced in an acti0n, which,seems to have been considered and adjudged both in the District and Supreme Courts, as solely possessory, mid consequently did not involve the questions raised in the present suit. The verdict and judgment of the inferior court in that case, do not touch any dispute between the parties as to title, and a reservation is made in the judgment of the Supreme Court, securing to the defendant and the appellant in that case, the right to maintain the present suit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed, and annulled; and, it is further ordered, that this cause be remanded to said court to be tried on its merits, the defendant and appellee to pay the costs of this appeal. -


author: Martin, J.,

text:
    SIMPSON vs. HIS CREDITORS.
    Eastern Dist.

      June, 1836.
    APPEAL PROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Minors cannot claim a privilege on the property of their tutors, on account of the tutorship, which affects personal as well as real property. They have only a legal mortgage, to take effect from the date of the tutorship.
    This appeal was taken by the syndic of the plaintiff’s creditors, and as a creditor himself, and by another creditor, from a judgment sustaining an opposition, in which the opponents were allowed a privilege and mortgage of the highest order, after the law and other privileged charges, on all the property of the . insolvent, on account of his tutorship.

      Minors can_ «otclaim a PH-«feí-eonthepro-perty of their count’of°the tu-as well as real KToniy Pie- {>*? t0 the date of the tutolslnp-

      Jl. N. Ogden, for the appellants.
    tMorgan? contra.
   Martin, J.,

delivered the opinion of the court.

Beaumgard, the syndic, and Bartel, a creditor, are appellants from a judgment sustaining the opposition to the tableau of distribution, (presented by the syndic) of Catherine Roddy and others, and ordering them to be placed on said tableau collectively, for the sum of three thousand and eleven dollars and sixty-six and one-fourth cents, with a privilege of the highest order, after the law-charges and the vendor’s privilege : Beaumgard being a creditor, with a legal mortgage, and Bartel, a creditor with a special mortgage, and placed on the tableau as such, by preference to the opposing creditors.

The mortgage of the appellees result from the tutorship of the insolvent; that of Beaumgard from a legal mortgage, and that of Bartel, from a special one ; both of a much later date than that of the appellees, which had its effect from the marriage of the insolvent with the mother and tutrix. Louisiana Code, article 354. Neither of the appellants has . ,. any right to complain.of the judgment on his own account; but the syndic, in right of the mass of the creditors, justly complains that a privilege was granted; minors being only entitled to a mortgage on the property of their tutors, which affects real estate only, while the privilege affects the personal also. Louisiana Code, article 354.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the District Court be annulled, avoided and reversed, and this court proceeding to give such judgment as the court below ought, in their opinion, to have rendered, it is ordered, that the appellees be placed on the tableau of distribution, as mortgage creditors, from the date of the marriage of the insolvent, the appellees paying the costs of the appeal.


text:
    BROWN AND WIFE vs. COBB ET AL.
    Eastern- Dtst.

      June, 1836.
    APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF EAST FELICIANA.
    Where it is shown that a slave was purchased with the funds of the wife, and the title is taken in the name of the husband, the slave will become community property, but the price will become a legal charge against the community in favor of the wife.
    Where the deed of sale of certain slaves to the husband, during marriage, purports to be a simple absolute sale on its face, the slaves will be considered as community property.
    Parole evidence is inadmissible to show that an act of sale was different from what it purports to be on its face, as far as relates to title ; although it might be legal and proper in a claim against the community of acquests and gains, to show that the price of the article was paid out of the separate funds of the husband.
    This suit was instituted in the Court of Probates for the parish of East Feliciana, by the plaintiff, Brown, as administrator, and Charlotte Brown, his wife, as heir of the estate of Samuel Cobb, deceased, praying for authority to sell the whole property of the community existing between the deceased and his wife, Josephine Cobb, to enable them to settle and pay off the community debts, and make a partition of the remainder among the surviving widow and heirs of the deceased husband; and that the separate property of the widow and of the husband, be delivered to her and to his heirs respectively, &c. And further, to correct some mistakes in the inventory in relation to two slaves, Louisa and Henry, inventoried as the separate property of the deceased, whereas they should have been placed on the same as community property. They pray that the other heirs be cited and made parties to this proceeding.

      The defendants deny the right of the administrator to institute an action of partition, or even an heir, until acceptance of the succession, and not then, if accepted with benefit of inventory ; that the administrator and heir cannot be joined in the same suit; and further, that as regards the sale of the property to pay debts, this proceeding is illegal and oppressive to the survivor of the community, &c.
    On the merits the .defendants pleaded a general denial; and the defendant, Mrs. Cobb, expressly declares that all the property mentioned in the inventory belongs to the community, except the slaves Noah and Ben, which belong exclusively to her late husband’s estate; and that Simon and Francis, are her separate property, which she prays may be confirmed to her by final judgment; and that she have judgment against the administrator for the sum of eight hundred dollars, as the price of a negro woman named Lucy, who was her separate property, and sold by her husband during the marriage, who received the price thereof.
    At this stage of the proceedings, Charlotte Brown, wife of the plaintiff and administrator, presented her separate petition, alleging that she was sole heir of Samuel Cobb, deceased, having purchased out the other heir, Charlotte Breed, and prays for a partition with the widow in community, in conformity with the prayer of the original petition.
    Upon these pleadings and issues the cause was tried before the judge of probates, on the evidence produced by the respective parties.
    The opinion and decree of the probate judge embraces a full statement of the facts and evidence of the case, and is inserted below as a report of this part of it.
    “This is a suit between the heirs and widow of the late Samuel Cobb, for a partition between them of the community of acquests and gains that existed between the deceased and his widow. Claims are set up, both by the widow and heirs, to property found in the succession as not appertaining to the community, but as being the separate property of the one anc[ the paraphernal property of the other. The settlement of these -demands is now the only object of this contest. It agreed, that the parties shall have the right hereafter respectively'to bring forward their'claims, if they have any against the community.
    “The slaves Rhoda, and her children, Lewis and Amanda, are claimed by the heirs of Cobb as his separate property, and the slaves Francois and Simon, are claimed by Mrs. Cobb as her paraphernal property. It is clear that all these slaves were acquired during the marriage, and that, consequently, they form primh facie, part of the community of acquests and gains.
    “The question now arises, has any thing been shown on the trial that brings these slaves, or either of them, within any known exception to the general rule.
    “It appears that Rhoda and her children were sold at auction, on a credit of twelve months, and that they were bid off by Samuel Cobb, and were then transferred to him by A. Breed and wife, by notarial act.. Evidence was offered by the plaintiffs to show, that the price of Rhoda and her children was paid by' Cobb with property or debts which belonged to him before his marriage, and that they are consequently his separate property, and do not enter into the community of acquests and gains.
    , “ The conclusion is an erroneous one. By the Louisiana Code, article 2371, all property acquired during the marriage by purchase, forms part of the community. Now, if the husband acquires property by purchase, it is altogether unimportant by what means he pays for it. If the payment of the purchase money be made out of funds he had before his marriage, it may be that it would constitute a claim against the community, but that circumstance does not affect the rights of the wife otherwise. It appears from the proces verbal of the auction sale, that Cobb had some interest in the property sold, and that the sale was made at the written request of A. Breed, C. Breed, and Samuel Cobb, stating that they were owners of the property to be sold. On this it is contended, that the sale was a licitation for the purpose of effecting a partition among co-proprietors.
    “ The evidence is altogether insufficient to establish the fact, that the Breeds and Cobb were co-proprietors of the slaves in question. They may well have stated, as they did do, in their request to the auctioneer, that the property to be sold was theirs, and yet Cobb might have no interest in the slaves. The price of the slaves did not amount to one third of the whole amount of. property adjudicated. The auctioneer in the proces verbal, limits the right of Cobb by the use of these words, “ and in which Samuel Cobb is somewhat interested,” and, finally, a transfer by notarial act is made by Breed and wife, and accepted by Cobb, in which he stipulates to pay the price bid by him, and on the terms of the auction sale. If Cobb had been a co-proprietor, is it reasonable to suppose that he would have consented that the auctioneer should have used the terms he did use touching the extent of his right? Would he have accepted a deed from his co-proprietors in which no allusion is made to his co-proprietorship ?
    “ But, if it were conceded that they were co-proprietors of the slaves, it does not appear that they were put up at auction for the purpose of effecting a partition. The whole proceeding shows an intention to sell on the one part, and to buy on the other. It has all the requisites and appearances of a sale, and bears no semblance of an act of partition. By the French law, co-proprietors cannot sell to one another; consequently, a sale at auction by co-proprietors under that law, can have no other meaning or effect but a licitation for the purpose of a partition. Our Code has no such senseless provision, but, on the contrary, recognizes in express terms the right of an heir to sell to his co-heir, or to any other person. If co-heirs intend to sell for the purpose of making partition of an estate, the intention must appear on the face of the proceeding; at any rate, the appearances must not contradict such intention if they wish to give it effect.

      “The slave Francois, was purchased by Cobb at the probate sale of Etienne Sesehon. Nothing but presumptions, and those exceedingly slim, have been offered to show that he does not belong to the community of acquests and gains.
    “ The slave Simon, presents rather a new "question. He was purchased by Cobb from Wilson Maddox, on the 23d day of January, 1834, for the sum of $550, and on the same day a credit is entered on a judgment recovered by Mrs. Cobb against the estate of her deceased father, by'Stacy, her attorney, in the following words: ‘ Received of the within bond, the suin of five hundred and fifty dollars,' by /the slave Simon, purchased at that price by the plaintiffs, of Wilson Maddox, January 23d, 1834. Signed, D. S. Stacy, attorney for Josephine Sesehon, and S. Cobb.’ It is evident that Cobb acquired the title of Simon by purchase. It is also certain, that he paid the price out of the paraphernal property of his wife. ,

    “If the deed from Maddox to Cobb, had expressed the consideration to have been paid out of the paraphernal property of Mrs. Cobb, the slave would have become her paraphernal property. Savenat et al. vs. Lebreton et al., 1 Louisiana Reports, 520. But the deed does not express this fafct. Has not the husband a right to use the money of his wife to pay for his purchases? And does the fact of his doing so bring the property purchased by him under any exception to the general rule, that all the property acquired during the marriage by purchase, is community property? I think-not; and therefore decide, that the slave Simon forms part of the community of acquests and gains.
    “ The slaves Ben and Noah, are admitted to have been the property of Cobb before his marriage. It is, therefore, ordered, adjudged and decreed, that they be delivered to the plaintiffs.
    ■ “ It is further ordered, adjudged and decreed, that the crop growing upon the plantation, and all the property mentioned in the inventory, be partitioned between the widow and heirs of Samuel Cobb, a moiety to the widow, and the other moiety to the heirs, and that experts be appointed to inquire and report whether the same be devisable in kind. '
    “ It is further decreed, that the costs of this suit be paid out of the property, to be divided one half by each of the parties.”
    From the decree thus rendered, the plaintiff, Charlotte Brown, appealed.
    Lawson, for the plaintiff.
    1. The appointment of administrator was by a decree of the Probate Court, and cannot be inquired into collaterally, but must be attacked by the direct action of nullity, and especially when the party who attempts it has brought an action to set it aside, and judgment was rendered against him which stands unreversed, which is the case here, 2 Louisiana Reports, 244, 590. 11 Martin, 608.
    2. Owners of undivided parts of an estate have at all times the right of requiring a partition; and an administrator is appointed to act only till partition is made. Louisiana Code, articles 1040, 1215. 6 Louisiana Reports, 472.
    3. Each spouse, or his legal representatives, have the right to be put into possession of their separate property immediately upon the dissolution of thé conjugal community, and before the settlement of its affairs. Robin et al. vs. Castile, 7 Louisiana Reports, 294.
    4. The court a quo was right in refusing to suffer the defendant to prove by parole the agency of S. Cobb in the purchase of the slaves Simon and Franqoise, in contradiction to the deed of sale of Wilson Maddox to S. Cobb, and the proces verbal of the adjudication of Franqoise. 3 Louisiana Reports, 460.
    5. The court a quo correctly decided, that the slave Simon was community property, and therefore the judgment of the Court of Iberville was improperly received as evidence of title to the slave Simon. It contradicts the pleadings, and is but a part of an incomplete and imperfect record- 8 Martin, JV*. S., 382.

      6. The twelve months’ bond, with the annexed receipt, was improperly admitted in evidence by the court a quo to' show title to the slave Simon :
    1st. Because it was only a part of an incomplete record.
    2d. Because it contradicts the deed of Wilson Maddox to S. Cobb, who was acting as the head of the community.
    3d. Because no authority to D. S. Stacy was shown, to accept the transfer of a slave and enter satisfaction in the judgment.
    4th. Because, if S. Cobb authorized the attorney to credit the judgment with the price of Simon, this amount will only form a charge against the community. Dismuke et al. vs. Musgrove, 8 Martin, Jf. 382.
    7. The slave Francois is community property. He was adjudged to S. Cobb at the probate sale of Mrs. Maddox, and he gave his notes, with security, for the,payment of the price. These notes are outstanding and unpaid.
    8. The slave Rhoda and her children are clearly separate property.
    1st. It is admitted that these slaves were adjudicated to S. Cobb after his marriage /with defendant, but they were acquired by licitation to effect a partition among co-proprietors by indivisión, of whom S. Cobb was one. Louisiana Code, articles 1261, 1304. 11 Martin, 81.
    2d. The title of co-proprietors by succession, remounts to the death of,their common ancestor, and, as the part of each is undetermined until partition, the right of each extends to the universality of the goods, and to each part, totim in tofo, et totum in qualibet partb., Louisiana Code, articles 934, 943, 1031, 1046. Ibid., 1420, 1214.
    3d. A joint heir, or other joint proprietor, does not acquire a new property by partition or licitation: these modes of division but determine the extent of the rights of each joint owner: the heir, or other co-proprietor, is supposed to have been from the moment of the decease of the common author, or of the joint ownership proprietor of the property composing his lot, or adjudged by licitation. There is no change of title. The property which the heir receives, or is Iicitated to the co-proprietor, descends under' the title of succession, or is continued from that of joint ownership. The title is but completed and perfected by the designation of specific property. Property thus owned does not enter into the conjugal community. Napoleon Code, article 1408. Louisiana Code, 1420,1214. 12 Toullier, number 155. 1 Louisiana Reports, 520. 3 Ibid., 231.
    4th. No change can be made during the marriage in the matrimonial agreement or conjugal community, expressly or impliedly, contracted. During its existence, debts contracted enter into the partnership as a charge, and must be acquitted from the community fund. From which it follows, that the spouses cannot during the marriage, by contravening the prohibitory provisions of the Code, (article 2307,) either enrich the community at the expense of their property and personal goods, nor enrich themselves by augmenting their personal fortune at the expense of the community.
    If the community furnished any part of the price of these slaves, recompense is due by the spouse benefitted. Louisiana Code, 2309, 2372. Napoleon Code, 1469, 1470-73, 1436-7. 12 Toullier, numbers 343-44.
    5th. These principles are in conformity to the universal principles of all partnerships. Whatever the partners bring into the partnership forms a part of it; and whatever the partners individually and from their separate funds may' have disbursed or become liable to pay for the partnership, it is bound to reimburse to them. Louisiana Code, 2824, 2835.
    The court a qua should have permitted the plaintiffs to have shown how the slaves Rhoda and her children were paid for, it being alleged that they are separate property.
    The proces verbal of the licitation, and the deed following it, established the adjudication.
    Payment of the price of real estate may be proven by parole.
    Parole testimony is admissible, in contradiction to a written instrument to prove facts which are merely inductive to the main facts which are required to be proved. 7 Louisiana Reports, 156. 4 Martin, N. S., 212. 6 Louisiana Reports, 258, 606.

      Andrews, for defendants.
    1. All property purchased during marriage is community, provided it be by a real sale and purchase. Louisiana Code, 2371, 2374.
    2. Sale of the property from Breed to Cobb is a real sale ; the nature of which cannot be contradicted by parole testimony, or by presumptions.
    3. No joint ownership of said property was shown previous to said sale.
    4. A sale for the purpose of partition is a real sale, which originates a new title, but does not continue an old one. Totum in toto, et totum in qualibet partb, is no maxim of our law. Louisiana Code, 1420.
    5. Property taken in payment of a paraphernal credit of the wife is not a sale, but a dation enpayement. Character of a contract does not depend on its name, but on its nature and essence. Peet vs. Morgan, 6 Martin, Jf. S., 583. Bynum vs. Armstrong, 5 Martin, N. S., 161.
    6. If the husband receives property in this manner, the presumption arises that he did so as the administrator of his wife’s paraphernal effects. This presumption can be strengthened by additional proof, such as is herein given.
   Mathews, J.,

delivered the opinion of the court.

This suit, after having passed through the ordeal of many exceptions, taken in limine' litis, finally settled down in a contest touching the partition of the community property acquired during the marriage of the defendant with Samuel Cobb. The plaintiff, Mrs. Brown, demands a division between herself (as having succeeded to the interests of the deceased husband,) and the defendant, widow, in community. As to the claim for a partition of the community of acquests and gainá, it is not disputed. But questions were made by the pleadings arising out of the different pretensions of the parties.by which each claimed as their separate property certain slaves which had been inventoried as common. The court below decided against the claims of both parties. The judgment thus rendered having a tendency to affect the interest of the plaintiffs in a greater degree than that of the defendant, the former appealed.

where it is j*0™ w *aJjula chased with the funds of the wife, an(j the title is 0fthehus-band, community pro- ^ °°me a lc:S'al charge against the community, °f t!ie

Where the certain Slaves to foe husband, during* marriage, purports to be a saiefon Lfface^ ^eC0Bs^eredas community pro-

evi_ deuce is inad-that an act of sale was different from what it purports to be on its face, as far as relates to title, although it might he legal and propel*, in a claim against the community of ac-quests and gains, to show that the price of the article was paid out of the separate funds of the husband.

As to the slaves claimed by the defendant, viz.: Simon and Francois, her pretensions need not be here examined, as she did not appeal, and it is acknowledged by her counsel, in his brief of argument, that the decision of the court below is correct, decreeing them to be property of the community; , ' . , _ . ,‘ n , , . but as Simon was purchased with funds belonging to the wife, although the title was taken in the name of the husband, the price given will constitute a legal charge against the communitjt.

In relation to the slaves Rhoda and her children, claimed as the separate property of Mrs. Brown: the evidence of 1 1 x J 7 title produced, shows that they were purchased by the husband during the marriage. A document was adduced indicating that the purchaser had some interest in the property which was sold at auction, amongst other effects. The amount and value of his interest are not shown by the J t written document, and the deed of sale for the slaves in question, exhibits a purchase without reference to any right of property previously existing in the purchaser. We are, therefore, of opinion, that the court below did not err in considering the deed as evidence of a simple sale, by which the purchaser acquired property pending the marriage, and not a licitation of effects held in common by him and other persons. Parole evidence was offered to show that the act of sale was different from what it appears on its face. This evidence, we think, was properly rejected, as it relates to the question of title, although it might and probably would be proper in a claim against the community of acquests and gains, in favor of the plaintiffs, to show that the price was paid out of the separate funds of the husband.

The articles of the Louisiana Code, relied on by the defendant, are explicit, and demonstrate clearly that the slaves Rhoda and her children constitute a part of the matrimonial community as it existed at the death of the husband. Louisiana Code, articles 2314, 2371.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be affirmed, the costs to be paid out of the community property, reserving to the respective Parties to this suit their right to prove the amount paid out of the separate funds for the property now in dispute, as a charge on the community, &c.


text:
    WILCOXON vs. BUFORD'S HEIRS.
    WESTERN DlST.
    September, 1836.
    APPEAL PROM THE COURT OP THE PIPTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where the debt claimed by the plaintiff, and the damages sought for in the answer of the defendant, arise from one and the same transaction, the latter claim is a fair and legal demand, which may be pleaded in reconvention.
    So where demands are different, but have the same origin, and are intimately connected, being the consequence of the same transaction, the defendant may reconvene the plaintiff for damages in his answer in the same suit".
    This is an action instituted against the widow and heirs of the late Warren Buford, to recover from them the sum of one hundred and sixty-five dollars and sixty-four cents, with legal interest due thereon, which, the plaintiff alleges, he paid as the surety of said Buford, in his life time, on a twelve months’ bond.

      The defendants’ counsel pleaded an exception to the action.
    1. That there was no cause of action set out in the petition.

      2. That the District Court was without jurisdiction.
    3. The suit should have been instituted in the Court of Probates, it being a debt of the succession.
    On the merits, the defendants pleaded a general denial. They further aver, that the plaintiff is indebted to them in this: that when said twelve months’ bond became due, execution issued thereon, and a negro slave of their ancestor 'was seized and sold, but which, owing to the fraudulent and illegal conduct of the plaintiff at the sale, in preventing bids through misrepresentation, was purchased in by him for one hundred dollars; a sum much below the real value of said slave, and insufficient to pay the balance on said bond.
    The defendants further aver, that the said slave, was worth six hundred dollars, and that they are damaged one thousand dollars for his value and hire, which sum they plead in reconvention: also, the price of a quantity of sugar, which they aver the said plaintiff received and sold since the death of their ancestor, belonging to them, and has failed to account for the proceeds. They further plead the ‘prescription of three and five years, and pray that the plaintiff’s demand be rejected, and for general relief.
    On these pleadings and issues the parties went to trial.
    The defendants were proceeding to establish the averment in their reconventional demand,' and offered witnesses to show, that at the sale of the said slave they were present, and would have bid six hundred dollars, but were prevented by the plaintiff, who stated, that the defendants were poor and destitute, and that it was desirable to bid off the slave for them as cheap as possible.
    The counsel for the plaintiff objected to the introduction of the testimony, on the ground that the matters'set up were cause for a separate action, but not a legal demand in recon-vention ; which objection being sustained by the court, the defendants took their bill of exceptions.

      The cause was submitted to a jury, and the plaintiff had a verdict and judgment thereon, from which the defendants appealed.

      Lewis, for the plaintiff.

      Splane, for the defendants.
    1. The testimony offered in support of the reconventional demand was improperly excluded; and the judgment of the court below must therefore be reversed.

      2. The demand in reconvention, in this case, was proper and legal, and should have been sustained. Code of Practice, 377.
   Martin, J.,

delivered the opinion of the court.

The plaintiff claims a sum of money which he was compelled to pay, as the surety of the defendants’ ancestor, in a twelve months’ bond.

The defendants pleaded that a slave of their ancestor-was sold under an execution to satisfy the claim of the creditor in the twelve months’ bond, and the plaintiff by fraud and misrepresentation prevented several individuals and others who were desirous of purchasing the slave which had been seized, from bidding his value for the benefit of the family, whereby said slave was adjudicated to him for a very small sum, leaving a balance still due to the creditor in the bond, which the plaintiff afterwards paid, and which is now the object of the present suit to recover: While on the other hand it is urged, if the persons who attended the sale had not been prevented from bidding by the fraud and misrepresentation of the plaintiff, the slave would have brought a sum greater than that due to the creditor, leaving a considerable balance for the defendants; wherefore they claimed damages in reconvention.

The district judge refused them leave to introduce witnesses to establish these damages; being of opinion they could not be demanded in reconvention, but must be sought for in a separate action : Whereupon a bill of exceptions was .taken, and the defendants are now appellants from the judgment afterwards rendered against them.

Where the debt claimed by the plaintiff, awl soughtfor?nthe answer of the from one andthe tion, the latter and”1 legal ¿tí-mand, which inTeconyentfom

man°isWareedifferent, but have the same origin, and aré intimate-ing°ntheCtooase" quenee of the same transaction, the defend-vene^íe plain" tiff for damages in his answer in the same suit,

The debt which the plaintiff claims, and the damages sought by the defendants, arose from one and the same transaction.

The sale of the slayé as shown by the plaintiff, left a balance due which he was obliged to pay; and it is contended by the defendants that it would have rendered this payment by the plaintiff unnecessary, and entitled them to the excess of the price, had not the plaintiff by his fraud and misrepresentation discouraged bidders at the sale. The demands are different but have the same origin and are inti-ma'tely connected; being the consequence of the same transaction. The district judge, in our opinion, erred in declining to receive evidence of the reconventional demand,

tt is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and " < — l ' reversed ; the verdict set aside and the cause remanded for a i>ew trial, with directions to the district judge to permit the defendants to introduce evidence in support of their claim in . , 11 reconvention; the plaintiff paying the costs of this appeal.