author: Vooeiiies, J. Land, J.,

text:
    James Davis v. Isaac Stern.
    In casos of fraud and simulation parol evidence may be introduced by third person?, to contradict, or vary the content? of written instruments.
    Conversations or admissions of the parties implicated in the fraud or simulation, may be offered l>y creditors, the objection to such evidence going to the effect or weight of it, when the declarations nre not made in the presence of the other party.
    Where a sale j? clearly a simulated one, a subsequent a? well a? an antecedent creditor majr treat it as a nullity.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      C. V. Jonte and J. Dunlap, for plaintiff and and appellant.

      Jliestand & Levy and Charles A. Taylor, for defendant.
   Vooeiiies, J.

The defendant, a judgment creditor of L. F. Jonte,levied upon property conveyed by the latter to James Davis, by public act dated the 9th day of December, 1856 ; hence the injunction suit brought by this party to prevent the sale of the property, which he claims to belong to him.

The defendant joins issue, on the ground of simulation, alleging that this act of sale is null and void, for want of consideration.

The Civil Code, Art. 2456, provides, that: “ In all cases where the tiling sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated ; and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.”

The evidence shows, in the case at bar, that the vendor, L. F. Jonte, continued to reside on the premises sold, up to the date of seizure; but the plaintiff contends that it was by virtue of a contract of lease executed by him in favor of liis vendor, on the next day after the sale. If the contract of lease be not a precarious title, the above quoted Article could not apply in this instance, unless the evidence disclosed the fact that the lease ilself was a simulated affair. Of this, however, we are satisfied from the acts and conversations of the interested partios, and we agree with the District J udge, that the whole transaction was a simulation, and that it had never been contemplated by the parties, that the title io the property in question should vest in the plaintiff

In order to arrive at this conclusion upon the question of simulation, we had to consider a portion of the evidence objected to, during the trial, by the plaintiff. His bill of exceptions states, that the District Judge improperly admitted parol evidence as to the contents of written documents, and the declaration of L. F. Jonte, in the absence of the plaintiff.

It is a well settled rule of law, that in all cases of fraud and simulation, parol evidence may be introduced by third persons, with the view of contradicting or varying the contents of written instruments. Indeed, this is the only mode in which they can exorcise the remedy allowed to them, to set aside acts and documents injurious to their legal rights. And it is no less certain, that evidence of the conversations or admissions of the parties implicated in a fraud or simulation, may be offered on behalf of creditors, the objection going to the effect or weight of sncli evidence, when the declarations arc not made in the presence of the other party. It is extremely difficult to prove simulation or to ferret out fraud, and, but in rare instances, is it susceptible of positive and direct proof; this is the reason of the relaxation of the rule of law, invoked by the plaintiff in this instance.

The fact that the plaintiff’s title is a simulation, being' conceded, it is necessary to dispose of two objections raised by him to the proceedings resorted to by the defendant in injunction.

The first' objection is, that the latter should have resorted to a direct action of nullity, and not have seized the property at once.

This is untenable. There is a manifest difference between simulated sales and such as are made in fraud of creditors. The remedy, in the latter instances, is the revocatory action ; whilst in the other, the creditor may, at his option, institute the action “ en declaration de simulation,” or proceed via executiva. There is an obvious reason for this distinction ; the revocatory action is predicated upon the illegally injurious effects of a contract, the reality of which is not questioned ; whilst in cases of simulation, there is no contract at all, but stipulations which are null and void, absolutely for want of sincerity. A simulated transaction can have no legal effect; it is a non-entity. Hence the right of the creditors to proceed, via executiva, in all cases of simulated transfers. This doctrine has been expressly recognized in the following cases, to wit: Simpson v. Mills & Cleveland, 12 An. 173; Erwin v. Bank of Kentucky, 5 An. 1; Emswiler v. Burham, 6 An. 717.

In the case of Erwin v. Bank of Kentucky, the court said : The distinction between a fraudulent contract and a mere simulation, has always appeared to ns elementary. A contract is not the instrument of writing by which it is witnessed. L. C. 1755. It results exclusively from the consent, the aggregatio mentium of the parties to it; and without such consent, no contract can exist. Hiriart v. Roger, 13 M. 129, and authorities there cited ; Merlin, verbo Simulation.”

We have repeatedly held, that the chapter of the Code regulating the revocatory action, is not applicable to cases of simulation, and that in those cases creditors may seize, notwithstanding the apparent transfer.”

In the case of Emswiler v. Burham, the court expressed the same opinion, saying : “ We adhere to the doctrine laid down in the case of Erwin v. Bank of Kentucky.” And in Simpson’s case, reported in 12 An. 173, the same doctrine was recognized upon the authority of the previous cases quoted.

It is a matter of no moment whether the creditor’s claim accrued previously or subsequently to the passing of a simulated deed. A simulated sale is an absolute nullity, and has never had, nor can ever have any legal effect.' It cannot be the basis of prescription ; for it is not translative of property. The vendee’s possession in such a case, is the possession of the debtor ; and the latter’s creditor, whose rights or claims have accrued subsequently, are no more affected by this simulated deed than the debtor himself. It will not be de denied that the latter has the right to cause the simulated deed to be cancelled, upon the production of a counter-letter, or upon probing the vendee’s conscience. C. C. 2236. Now there is this difference in favor of the creditor, that he may show the simulation, not only by counter-letter or by probing the vendee’s conscience, but also by parol evidence and presumptions of law.

If, therefore, the debtor may at any time have a simulated deed declared a nullity, it follows, necessarily, that his creditor may do so, without reference to the date of his claim. This brings the question to a point; if an antecedent creditor lias the right to proceed via execuliva in cases of simulation, because of the unreality of the transfer, then for the same reason, ought the same privilege to be extended to a subsequent creditor.

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

Land, J.,

dissenting. The distinguishing fact of this case is, that the defendant was not the creditor of the plaintiff’s vendor at the date of the sale to him, evidenced by a notarial act, and duly recorded — but became so several month’s afterwards.

The principal question in this case is, whether or not the future creditor of the vendor can treat the sale as a nullity, on the grounds of simulation and fraud, and seize the property conveyed under the execution issued on his judgment as the property of the vendor.

In the case of Hesser v. Black, 5 N. S. p. 96, Judge Porter says :

“ The proof adduced, shows, however, that the plaintiff in execution, did not become creditor until years after the date of this conveyance from the plaintiff’s father, which is alleged to be fraudulent. Under such circumstances, our law only gave an action, when it was proved that at the time of alienation the party alienating had the intention to defraud the future creditor.
The amendments lately made to the Civil Code, contain a positive provision, that creditors cannot annul a contract made before the time their debt accrues. O. C. 1988.”

In the case of Henry v. Hyde, which was the case of a future creditor who had made a seizure under a fi. fa., Judge Martin says :

“ In Richards v. Wallace et al., vol. 3, 338, we hold, that if the sale to the plaintiff was fraudulent, suit should have been brought to set it aside. The sale could not be treated by the defendants as a nullity, and the property sold as if no alienation had taken place.” 5 N. S. 634.

In the case of Morgan v. Davis, Judge Porter says :

“ If we consider the transaction in the only other point of view of which it is susceptible, namely, that it was simulated and entered into for the purpose of defrauding creditors, there is equally as fatal an objection to the plaintiff’s right of recovery. They do not show they were creditors at the time the conveyance was made.” 4 La. 142.

In the case of Brown v. Ferguson, Judge Mathews says :

“ The only question which remains to be settled, is whether those who were not creditors at that time, can legally claim the revocation and rescission of that sale, as fraudulent in relation to their rights. On the ground of simulation alone, without consequent fraud on the rights of the creditors, it is believed that they would have no just claim to have the contract annulled, as between the apparent vendor and vendee. It may be laid down as a general rule, that acts by which a debtor alienates his property, can only be considered as fraudulent against creditors who are such at the time of the alienation. Tet future creditors may be considered as being injured by such alienations, and have a right to cause them to be annulled, if they were made with the intention to provide the means of defrauding such creditors.” 4 La. 259.

It appears from these decisions that there is no difference between simulated sales and fraudulent sales, as to the right of future creditors to cause them to be set aside, and that in all cases, the remedy of the future creditor is by an action of nullity.

It also appears from those decisions, that the jurisprudence, upon the subject of the right of future creditors to annul contracts made at a time before their debts accrued, is the same under the present Code, that it was under the Code of 1S08, and also under the Spanish and Roman laws.

I know of no authority or precedent to support the legality of the seizure made in this case — but on the contrary, the authorities are numerous, that the future creditor’s only remedy is by action to annul the contract or sale.

It is, therefore, my opinion, that the injunction should be perpetuated, reserving to the defendant his action of nullity.

Merrick, O. J., concurred in this opinion.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    P. A. Rost and J. Montgomery v. Executors of Henry Doyal.
    Testamentary executors, after being finally discharged by a judgment from their trust as such, have no authority to institute a suit to enforce provisions of the will.
    APPEAL from the District Court of the Parish of Ascension, Duffel, J.

      F. Soulé, for plaintiffs and appellants.

      Benjamin, Bradford & Finney, for defendants and appellees.
   Buchanan, J.

This is a suit for a partition of certain slaves which belonged, at the time of the death of Stephen Henderson, to the succession of the said Henderson, and to Henry Doyal, jointly.

The plaintiffs sue in their individual names, professing to act in discharge of a duty imposed upon them, as the late executors of Stephen Henderson.

The defendants except to the action on the ground, among others :

That the plaintiffs herein arc no longer the executors of the late Stephen Henderson, and consequently are without right or interest in the premises, and, therefore, incompetent to maintain the present suit.

On the trial of this exception, it was proved that the plaintiffs qualified as testamentary executors of Stephen Henderson, and took out letters testamentary, in the Court of Probates of Now Orleans, on the 15th of March, 1838 ; and that they were finally discharged from their trust as such testamentary executors, by decree of the same court, signed by the Judge of the same, on the 21st of June, 1839.

It was, perhaps, unnecessary to make the proof of the discharge of the plaintiffs as executors of Henderson’s will, inasmuch as the petition declares that they had ceased to be such executors. We are not informed by the pleadings or evidence of any other quality held or possessed by the plaintiffs, which entitles them to maintain this action of partition.

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


author: Merrick, O. J.

text:
    Adolphe Grass v. Arthur P. Haynes.
    In au action to recover the amount for which work has been adjudicated on a road, to be made as required by the regulations of a Police Jury, to render the owner of the land liable, it must be shown that the forms of the law were complied with when the adjudication was made, and that tho work has boon done in conformity to law and to the terms of adjudication.
    Although tho certificate of tho Inspector is made by the ordinances of tho Police Jury evidence of the debt, their acceptance of the work is not conclusive evidence that it was done in conformity to law and to the term? of adjudication.
    APPEAL from the District Court of the Parish-of Iberville, Beale, J.

      David, Barrow <& Pope, for plaintiff.

      Lauve & Labauve, for defendant.
   Merrick, O. J.

“ This case involves a single question of law.

“ In October, 1858, the appellee undertook from a Road Inspector, to make a road as required by police regulations, on certain lands of the appellant; tho work was adjudicated to said appellee at one hundred dollars per arpent; this work was afterwards received by the Inspector; the appellee then obtained an order of seizure and sale against the land; the defendant and appellant obtained an injunction, upon the ground among others, that the said road was not made and repaired in accordance with the law of the State or the regulations of the Police Jury, and consequently, the price of adjudication was not duo, and should be reduced to tho value of work done.

“ The appellee moved to dissolve the injunction on the face of the papers. Tho parties agreed in writing, that the motion to dissolve the injunction should be tried, reserving to the appellant the right of showing that the work was not done, and that the price was exorbitant, should the court decide that this case form a ground of opposition to said order of seizure and sale, and be the basis of an injunction.

“ Tho court sustained tho motion, and dissolved the injunction, with damages and interest.

This motion admits, then, that the work was not done, (9 R. 200, 11 L. 482, 4 L. 293, 8 N. S. 396,) but the appellee contends, that as no fraud was alleged, the appellant could not be allowed to prove that fact.”

The third section of the Act of 1855 has made provision for the order of seizure and sale, and directed the mode of proceeding.

It requires that the act of adjudication duly recorded should be annexed to the petition, accompanied with the oath of petitioner, showing the amount due him.

The thirty-second section of the ordinances of the Police Jury of the parish of Iberville, it is true, makes the certificate of the Inspector, as to the work done, evidence of the debt.

If the Police Jury have power to declare what effect shall be given to the acts of the Inspectors, a point which we do not decide, we are not aware of aDy law which makes their acceptance of the work conclusive evidence that the same has been done in conformity to law and the contract entered into at the adjudication.

The pleadings admit, that the plaintiff did not perform tho work according to the law of the State and the regulations of the Police Jury. If not, then the price of tho adjudication ivas not due, and the acceptance of the work by the Inspcctor was erroneous and illegal. If illegal, he was without authority to accept the work so as to bind the defendant absolutely for the price adjudicated; for parties are bound by the acts of third persons beyond the real value oí the services rendered, only where their acts are in conformity to law.

It required no allegation of fraud to entitle the defendant to prove that the work was not done according to law; for the very foundation of the suit rests upon the performance of the contract entered into by the plaintiff when he accepted the adjudication, and he is not allowed his order of seizure and sale unless he takes an oath, which implies such performance.

To bind the defendant in this action, it must be shown that the forms of law were complied with when the adjudication was made, and that the work has been done in conformity to law and the adjudication. Of course, the defendant is at liberty to controvert either or both propositions.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; that said motion to dismiss be overruled, and that this case bo remanded to the lower court for further proceedings according to law ; the plaintiff and appellee paying the costs of the appeal.


author: Merrick, 0. J.

text:
    Euphémie Rils v. L. J. Hamilton, Wife of R. C. Downs.
    A married woman is without power to file an answer and stand in judgment, without being authorized l)y her husband or the Judge ; and a judgment by default rendered against her before she is so authorized produces no effect.
    APPEAL from the District Court of the Parish of Iberville, Beale, J.

      A. Talbot, for plaintiff.
    ' W. J. Hamilton, for defendant and appellant.
   Merrick, 0. J.

This suit is upon certain obligations given by a married woman as part of the price of a plantation.

Judgment having been rendered against her for $9,770 37, she appeals.

Among other grounds of reversal, it is urged that the defendants have not been properly served with petition and citation, and moreover, that the defendant, Mrs. Downs, the wife, was not authorized to defend the suit.

Whether the motion for further time to answer waives the defective service of petition and citation, is not necessary now to determine, as we shall reverse the judgment on the other ground, and plaintiff will be at liberty to cause a new service to be made according to Art. 192 of the Code of Practice, if she shall deem it expedient. See O. P., Arts. 189,192, 201; 3 An. 130.

The default was set aside, on the filing of an answer by Mrs. Downs, without the authorization of her husband. He does not appear in the case, except to move for further time to answer, and to authorize the appeal.

Under the positive provisions of Arts. 123 and 126 C. C., and the decisions of this court, the defendant was without power to file an answer and stand in judgment, without being authorized by her husband or the Judge. 1 An. 260 ; 9 An. 204 ; 12 An. 147.

The motion for further time to answer was subseguent to the judgment by default ; hence, when such judgment by default was entered, the irregular service was not aided by any appearance, or waiver of petition and citation by defendant. That judgment being erroneous, and having been sot aside by the lower court, there is no reason to reinstate it hero even, if it could avail the plaintiff; had it been regular.

The judgment of the lower court must be reversed, and the cause remanded for further proceedings.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court, there to be proceeded in according to law, the appellee paying the costs of the appeal.


author: VooitniES, J.

text:
    R. N. Campbell v. S. D. Oliver, Sheriff, et al.
    On ilie dissolution of an injunction restraining an execution on a twelve months bond hearing eight per cent, interest, damages can only be awarded at the rate of .twelve per cent.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Goodrich <& DeFrance, for plaintiff and appellant.

      M. Dubose, for defendant.
   VooitniES, J.

The plaintiff in this injunction suit purchased property on a credit of twelve months at Sheriff’s sale. The property thus adjudicated to him being levied upon for the payment of the twelve months bond, he enjoined the execution, on the ground that the adjudication was a nullity.

’The illegality complained of is, that the property was adjudicated to him, without reference to a previous mortgage. The plaintiff alleges that “ no provision was made for the payment of said prior mortgage, but the same stands as a lien and incumbrance on said property, and by means whereof your petitioner has been much vexed and annoyed, and put to great damage and expense.”

Now, it appears that the mortgage in question had been cancelled, on the plaintiff’s own application, the month previous to suing out the injunction. The note secured by this mortgage was prescribed long previously to the adjudication on twelve months credit, unless prescription had been interrupted by partial payment or by some stipulation on the part of the debtor; but nothing of the kind is shown, or even alleged. The extinction of the principal obligation was fatal to its accessory. It must further be observed, that the note is not in evidence ; nor are we informed whether the mortgage, by which it was secured, was or not carried on the certificate of mortgages read at the Sheriff’s sale. Under these circumstances, we cannot arrive at any other conclusion than the one adopted by the Judge of the District Court.

But the judgment must be amended in one particular : interest should not run on the damages allowed; and, as the twelve months bond bears interest at the rate of eight per cent, per annum, damages on the dissolution of the injunction should have been granted at the rate of twelve per cent. only.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, by striking out the interest allowed on damages, and by reducing the rate of damages from twenty to twelve per cent.; and that in other respects, the judgment be affirmed, the appellee paying the costs of appeal.


author: Buciiakan, J.

text:
    G. W. Tegarden v. Mordicai Powell.
    It is too late, after a judgment by default, to except to llio jurisdiction of the court, on the ground of commorancy.
    A party interrogated on facts and articles may state any facts intimately connected with the subject of the interrogatorios, and necessary to an explanation of part of his answer.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.

      S. E. Hunter, for plaintiff.

      Muse & JIardee, for defendant and appellant.
   Buciiakan, J.

Plaintiff sues defendant in the District Court of East Feliciana upon two promissory notes. Citation was returned served “ by leaving the same at the residence of defendant, íd the town of Jackson, parish of East Feliciana, about thirteen miles from the court-house, with Albert H. Powell, a free white person above the ago of fourteen years, who resides there, the said Mordicai Powell being absent from home.”

Defendant having failed to appear and answer within the legal delay, judgment by default was entered on the 14th April, 1S59.

On the 15th of April, the next day after the judgment by default, defendant appeared by counsel and filed the following exception : “ that ho is not a resident of the parish of East Feliciana ; that his residence is in the parish of Pointe Coupée, where he has purchased a plantation, and whore he resides, and where he intends to remove his family, who are temporarily residing in the town of Jackson.”

T’his exception was stricken ont, after argument, on the ground that it was too late, after judgment by default; that it was dilatory, and should have been pleaded in limine litis. There was no error in this ruling. See Act of 20th of March, 1839, p. 172.

Defendant then answered, by pleading that the notes sued upon were given without consideration; that they were given in payment of a tract of land in Mississippi; but that plaintiff never conveyed the said land fo defendant, but retained the notes, and is now seeking to enforce their payment; whereupon he prays that the notes be cancelled.

To this answer, defendant annexed two interrogatories on facts and articles to be answered by plaintiff'. The first enquired of plaintiff whether the notes sued on were not given for a tract of land in Isaquena County, State of Mississippi. The second interrogatory enquired whether plaintiff ever convoyed said tract of land to defendant; and if so, before whom was the act of sale passed.

These interrogatories were answered by plaintiff. To the first he answered affirmatively. To the second he answered, that he did not convey the land to the defendant — but, by the direction and at the special instance and request of defendant, to the commercial firm oí Hughes, Hyllesled Co., of New Orleans; and plaintiff annexed to his answer a copy of his act of sale to Hughes, ITi/llested Co., and also the written direction and request of defendant to make said deed, and to pay the notes for the purchase thereof.

Defendant, by counsel, moved the court to strike out the portion of the plaintiff’s answer to the second interrogatory, which referred fo the sale to Hughes, Hyllested & Co., and also the documents annexed to 1 he said answer. This being refused by the court, defendant excepted.

The District Court did not err. The matters referred to in the bill of exception were intimately connected with the subject of the interrogatory, and necessary to an explanation of the first part of the answer ; from which, without such explanation, it would have seemed, contrary to the fact, that the consideration of the notes had failed.

After these answers to interrogatories filed, the cause was called for trial, and defendant prayed for a continuance in order to procure the answer of plaintiff, who was absent from the State, to additional interrogatories.

The court refused the continuance asked for. This was a matter within its discretion. The defendant had already availed himself of his right to examine the plaintiff touching the matters in controversy. And if this practice were sanctioned, there is no knowing where it would end. At every term of court, now interrogatories might be propounded ad infinitum. The plaintiff and appellee has filed an answer in this court to the appeal of defendant; in which he asks for ten per cent, damages for a frivolous appeal.

It is very evident, that there is no real defence to this action, and that the only object of the defendant is delay.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs; and with the addition of two hundred aud fifty dollars damages, to bo paid by defendant and appellant.


author: Merriok, 0. J.

text:
    State v. John W. Addison.
    A motion in arrest oí' judgment lies only for defects apparent on the face of the record.
    APPEAL from the District Court of the Parish of St. Tammany, Wilson, J.

      Thos. J. Semmes, Attorney General, for the State. A. Bowie, for defendant and appellant.
   Merriok, 0. J.

The accused has been convicted of the crime of manslaughter, and sentenced to seven years imprisonment at hard labor in the penitentiary. He appeals.

We have not been favored with any brief or oral argument on the part of the accused.

We observe in the record a bill of exceptions to the refusal of the Judge a quo to arrest the judgment, on the ground that one of the grand jurors was not a voter, nor qualified to act as a juror.

Without undertaking to decide whether, under the peculiar phraseology of the Act of 16th March, 1857 (p. 80), any objection can bo made to the Grand Jury after the first day of the term ; it is sufficient to say, that a motion in arrest of judgment lies only for defects apparent on the face of the record. 1 Chitty’s Criminal Law, 661. The objection urged by the accused in this case, in arrest of judgment, is made to appear by affidavits which form no part of the record. See the State v. Nolan, 8 Rob. 514.

We see nothing in this case which would justify a reversal of the judgment.

Judgment affirmed.


author: Land, J.

text:
    Heirs of Henriett Serret v. J. B. Labauve.
    Whore an administrator has placed a debt upon his tableau, aud made full proof of it, he cannot bo permitted, in the absence of proof of error, to question the truth and competency of the evidence adduced by him in support of the correctness of the tableau, when the heirs seek to make him personally liable, on his failure to collect the debt.
    The joinder of the heirs in the prayer for the homologation of a tableau, is not a waiver of their rights against the administrator for bis mal-administration m not proceeding to collect a debt at an earlier date, which was prescribed at the time it was placed on the tableau.
    PPEAL from the District Court of the Parish of W. Baton Rouge, Avery, J.

      Barrow & Pope, for plaintiffs.

      Zenon Labauve, for defendant and appellant.
   Land, J.

The facts stated in the opinion of this court in the case of Jean Baptiste Labauve, Adm’r, v. Heirs of Henriett Serret and H. Hébert, are involved in this controversy, and are stated as follows :

“ The administrator of Henriett Serret, deceased, with a view to the final liquidation of her succession, presented to the Probate Court, as it formerly existed, a tableau exhibiting the debts of the succession, the balances remaining for par tition, and the share falling to each of the heirs. The amount due to the succession by Hypolite Hebert, surviving husband of the deceased, arising from sales of the separate property of the wife during the marriage, was also set forth. This tableau was accompanied by a petition in which the administrator prayed that the heirs of the deceased, and Hypolite Hebert in his own right as surviving partner, and as tutor to his minor child, also an heir, be cited to show cause why the liquidation and partition should not be made the judgment of the court. He also prayed, that Hypolite Hebert be condemned to pay the sum which he appeared by the settlement to owe, and that the administrator be authorized to distribute the sum when collected among the heirs, in the manner proposed in the partition.”
“ The heirs, in their answer, admit the tableau to be correct, and unite in the prayer for its homologation.”
"Hebert excepted to the jurisdiction of the Probate Court, averring that the question of his indebtedness could only be determined by a court of ordinary jurisdiction, that it could not be cumulated with a proceeding for a liquidation and a partition of the succession, to which the administrator and heirs could alone be made parties. The exception was still pending when our present judicial system went into operation, and the cause was transferred to the District Court. The Judge sustained the exception, and dismissed the action against Hebert."

The only additional facts necessary to be stated are, that the debt due from Hypolite Hebert, mentioned in the tableau filed by the administrator, had been prescribed by the lapse of ten years after the death of his wife, at the time the heirs joined in the prayer for its homologation, and that the judgment of the District Court sustaining the exception and dismissing the action against Hebert, was affirmed by this court in 1849.

The defence is, that as the debt due from Hebert was not inventoried, his judicial admission of its existence in the tableau and in his petition for its homologation, does not bind him in his individual capacity, nor make proof against him in this suit, wherein the heirs seek to make him individually responsible for the debt, because the admission was made by him as the organ of tlie succession, and for the benefit of the heirs.

The force of this objection is destroyed by the evidence offered by the administrator to prove the correctness of the tableau filed by him in the Probate Court. The documentary evidence then offered proved the fact of the indebtedness of Hébert to the succession, and the same evidence appears in the record in this case as a part of the mortuary proceedings, and the administrator cannot, in the absence of proof of error, be permitted to question the truth and competency of the evidence there adduced by himself in support of the correctness of the tableau.

It is further contended, that the joinder of the heirs in the prayer for the homologation of thG tableau is conclusive upon them, and is a waiver of their rights against the administrator as respects the debt due from Hypolite Hébert, so far as the same was at the time barred by prescription. The tableau was accompanied by a petition praying for citation and judgment against Hébert for the debt due, and for authorization to distribute the sum when collected among the heirs of the succession. The joinder of the heirs in the prayer of a proceeding having for one of its objects the recovery of a debt due to them, cannot be construed into a waiver of any of their legal rights against the administrator, for his mal-adminis. tration in not proceeding, at an earlier date, for the collection of the debt due the succession.

The debt having been barred by prescription, the loss is justly chargeable to the administrator, because the evidence shows that Hébert possessed sufficient property after tlie death of his wife, to satisfy his indebtedness to her succession.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court bo affirmed, with costs.


text:
    A. S. Roberts v. Powers & Gardiner.
    WUei'c, under a special contract, a certain amount of timber w.is to lie delivered at n certain iilaee, and in the event or inability on tlie part- or tlie contractor to deliver at that point, it was agreed that it should bo delivered at another specified point, at a price equal to that if dclivorcct at the first Iliaco, tlie delivery to commence at a uortam time, and the contractor commenced the delivery at the place designated in the alternative some time before the time specified — UdCl: That the difference in the price could not he claimed for the timber delivered before the time specified in the contract.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Whitaker & Fellows, for plaintiff and appellant.

      Collens & Woolridge, for defendants.
   Land, J.

The plaintiff sues for the balance of account, for timber furnished by him to the defendants, under a special contract.

The answer contains a demand in rcconveution, consisting of various items, which exceed the balance of account.

There was judgment in favor of the defendants, and the plaintiff has appealed ; and as the former have not prayed for an amendment of the judgment, only one question is submitted for our decision, and that is, whether the item of $288 46, for loss on timber furnished from the Bayou St. John, and which constituted a part of the defendants’ claim in reconvention, was properly allowed. The plaintiff stipulated to deliver the timber, (which -was intended for the construction or repair of wharfs, in the first district of this city,) at the depot of the New Orleans and Jackson Railroad; and further stipulated, in case of accident to the railroad, to deliver it in the Bayou St. John, at a price equal to that at the depot.

The evidence shows that timber cost more when delivered in the bayou, than at the railroad depot, and it is for this alleged difference, under the contract, that the defendants claimed the aforesaid sum of $288 46 in their rcconvcntional demand.

The delivery of the timber under the contract, was to commence on the 1 »1h of June, 1857, but the defendants have failed to prove that they purchased timber at the bayou after that date ; and as far as the evidence discloses the date of the. purchase, it was prior thereto, to wit, the loth of June, 3 857. The plaintiff is certainly not liable for the difference in the price of timber delivered at the railroad depot, and at the Bayou St. John, before he was under a legal obligation, by virtue of his contract, to maleo a delivery at cither place.

The District Judge erred in allowing' this item ; and its allowance left a. balance in favor of the defendants, under the judgment of the lower court, of $7 f)6, when there should have boon a judgment in favor of plaintiff for $280 50.

It is, Iherefore, ordered, adjudged and decreed, that the judgment be reversed : and it is now ordered, adjudged and decreed, that the plaintiff recover of the defendants, in solido, the sum of two hundred and eighty dollars 'and fifty cents, (the balance due him, after allowing the defendants the sum of thirty-four dollars and fifty-five cents on their rcconvcntional demand,) with interest at the rate of five per cent, per annum, from the 17th day of May, 1858, and cosía in both courts.


text:
    Thomas Powell v. Joseph A. Graves.
    Where «i parly consents lo go to trial on the. merits, without insisting on the previous action nr the court on his exceptions, ho is presumed to liare waived the same..
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Mott & Frazer, for plaintiff

      Gaither <& McPheeters, for defendant .and appellant.
   Land, J.

Tn this ease, a rule was taken on Williamson Smith, the surety of the defendant on an attachment bond, 'to show cause why he should not be condemned to pay llio amount of plaintiff’s judgment, interest and cost.

In answer to the rule, the surety pleaded several exceptions, which do not appear to have been acted on by the District Judge. And as the surety consented to go to trial on the rule, without insisting on the previous action of the court on his exceptions, he is presumed to have waived the same.

On the trial, the District Judge says :

“ The defence to this rule is, that the defendant therein has not had the benefit of the Sheriff’s diligence during' the whole time ho was entitled to it, in order that the debt for which he is security might have been collected from the principal.
“ A fieri facias issued, to be returned in seventy days. The law prohibits any longer delay than this. O. P. 641. 'Counting the day upon which the fi. fa. was received by the Sheriff, and the day upon which it was returned, seventy days had elapsed. It seems to me the defendant has had all the delay which ho was entitled to in law. If he suffered, he should have made it appear.”

The District Judge did not err; and for the reasons assigned by him, it is ordered, adjudged and decreed, that the judgment be affirmed, with costs.


text:
    Victor Séré v. J. E. Faurès.
    The flonpion in the caso of Parlance v Faurc*} 14 An. 444, affirmed, to the oil 'd that when a broker or agent noil* a note with forged ondoraments on it, without disclosing tho fact of his agency or the nam° of his principal, ho is responsible for tho amount, with loga] interest, which was paid for (ho
    APPEAL from the Fourth District Court of Now Oilcans, Price, J.

      A. <6 A. Pilot, for plaintiff.

      Janin & Griffon, for defendant and appellant. <7. LeGardeur, for warrantor.
   Land, J.

A promissory note signed by H. A. Lee, for the sum of twenty-three hundred dollars, and payable nine months after date, to the order of Minor Kenner, and purporting to bo endorsed by tho payee and J. C. P. Wederstrandt, ivas sold to the plaintiff by the defendant, a professional stock and note broker of this city, without disclosing the name of his principal.

Before tho maturity of the note, L,ec, the maker, absconded, and the endorsements were discovered to be forgeries. The plaintiff offered to return tho note to the defendant, on the discovery of the forgery, and demanded from him the amount of tho check given for the price.

The note was received by the defendant from J. F. Clay, another broker, upon an agreement to divide the commission for selling it between them. Tho proceeds of the sale wore paid over by the defendant to /. F. Clay, less one-half of tho commission for soiling tho note.

The defendant was aware that Clay was acting in the capacity of broker, but did not know' for whom Clay was acting.

The judgment of the lower court is in favor of tho plaintiff for the sum of $2,088 40, the price paid for the note, with logal interest from judicial demand ; and the judgment is also in favor of the defendant over against J. F. Clay, called in warranty, for the sum of $1,044 20, with like interest from judicial demand, the same being ODe-half of the price paid for the noto.

The facts of this case, as between the plaintiff and defendant, are similar to those in the case Parlange v. Faurés, reported in 14 An., and the judgment between these parties, for the reasons stated in the opinion of the court in that case, is affirmed. But the judgment as between the defendant and the warrantor, J. F. Clay, is erroneous and must be reversed.

The legal effect of the judgment in favor of tho plaintiff, was to rescind the sale of the promissory noto made by the defendant to him. And the legal effect of tlio rescission of the sale, was to entitle tho defendant and warrantor to be reinstated in the position which they occupied, under the contract between them, prior to tho sale, with all the rights and remedies incident to that position.

Before the sale, the warrantor had no right of action against the defendant, for tho recovery of the amount of the note, nor any part of the same but his right was limited to a return of the note itself, which was held by the defendant as his agent or mandatary. And as the sale was rescinded, this is the only right which tho warrantor can claim and enforce against the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment as between the plaintiff and defendant be affirmed, with costs. And it is further ordered, adjudged and decreed, that tho judgment as between tho defendant and warrantor, be avoided and reversed. And it is now ordered, adjudged and decreed, that the defendant recover over and against tho warrantor, the sum of two thousand and eighty-eight dollars and forty cents, with legal interest thereon from judicial demand, less the sum of $11 50, amount of commissions for selling the note, with costs in both courts, reserving tho right of the warrantor to the note itself.


author: Vooriiies, J. Merrick, O. J., Vookhies, J.

text:
    The State of Louisiana v. Thomas Gutierrez.
    Tho Legislature have the right, under tho Constitution, to confer upon the Recorder’s court ill Now Orleans, suoh criminal jurisdiction as may bo necessary for tho punishment of minor crimes and oflbnces, and as the police and good’order of tho city may require.
    Tho Articlo 103 of tho Constitution, which guarantees to an accused the right of trial by jury, and requires that there should bo an indictment or Information, has no application to that class of of-fences which arc to bo tried summarily and without tho intervention of an impartial jury from the vicinage.
    Such eases as fall within the jurisdiction of tho Recorder, Mayor or Aldermen, under Article 124 of the Constitutioh, form an exception to tho general rulo as laid down in .Article 103, with regard to tho right of trial by jury.
    Tho Legislature is vested with absolute right of legislation, except when restricted by the Constitution.
    Tho 3d section of the Act of the Legislature of 1859, entitled u an Act for the prevention and punishment of selling liquor to slavos,” which requires that the Recorders in trying such oilencos, should bo assisted by a jury of three slave-holders, is not unconstitutional.
    A jury formed before the Recorder’s court, under a special statute, docs not fall under the constitutional clause in respect to an impartial trial by a jury of the vicinage, and any number of jurors may compose tho jury that tho Legislature may deem proper to fix.
    APPEAL from the Recorder’s Court of the First District of the city of New Orleans.

      E. W. Moise and C. Roselius, for defendant and appellant.
   Vooriiies, J.

The defendant was tried, found guilty and sentenced, under the provisions of “ an Act for the prevention and punishment of selling liquor to slaves, in the parish of Orleans,” approved March 17, 1859. Session Acts, p. 168.

His defence is, that this statute is unconstitutional, because it denies tho accused the right to be tried by an impartial jury of the vicinage, and dispenses with the filing of an indictment or information, in violation of the 103d Article of the State Constitution, requiring that: “ Prosecutions shall be by indictment or information. The accused shall have a speedy public trial by an impartial jury of the vicinage.” Const. 1852, Art. 103.

This case was tried before one of the Recorders of the city of New Orleans, assisted by a jury of three slave-holders, in conformity with the 3d section of the statute in question. This section reads as follows :

“ That the Recorders of the city of New Orleans,, and the Justices of the Peace in any part of the parish outside of the limits of said city, are hereby granted full power and authority to take cognizance of all prosecutions under this Act, and enforce the provisions of the same; that upon the arrest of any party or parties violating this Act, they, together with a jury of three slaveholders, summoned by them, shall pass a final verdict ,and enforce the penalties as aforesaid.”

The two preceding sections define the offence, provide for the arrest of the accused, and lay down rules of evidence peculiar to this class of misdemeanors. The fourth and last section gives effect to the Act from and afterithe date of its passage.

The Legislature had the right to confer upon the Recorder’s^court, the criminal jurisdiction requisite to try the offence charged toRhe accused. This authority is derived from the organic law itself. The Constitution provides:

Art. 61. “ The judiciary power shall be vested in a Supreme Court, in such inferior courts as the Legislature may from time to time order and establish, and in Justices of the Peace.”

Art. 78, (after defining the civil jurisdictions of Justices of the Peace,) declares : “ They shall- have such criminal jurisdiction as shall be provided by law.”

Art. 124. “ The Mayors, Recorders, Aldermen and Assistant-Aldermen, shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the punishment of minor crimes and offences, and as the police aud good order of said city may require.”

The question then presents itself, whether the jurisdiction of the Recorder being conceded, the defendant was entitled to be prosecuted in that court, by indictment or information, and tried by a jury of the vicinage, within the terms of Article 103 of the organic law. It must be solved in the negative.

The Article 103, which lays down the general rule, and is, besides, merely declaratory of the common law on the subject, must yield to Article 124, which provides specially, by way of exception, for the trial of minor offences by the Recorders of the city of New Orleans, acting under authority conferred by the Legislature. Such misdemeanors, as relate to the police and good order of the city, could not possibly be disposed of, were it necessary to proceed with all the solemnities of a jury trial, in the ordinary way. Hence the adoption of Article 124 of the Constitution of 1852, a reenactment of Article 128 of the previous Constitution.

It is worthy of notice that heretofore, in the discharge of their functions as criminal courts, the Recorders have proceeded in the summary way, without the assistance of the prosecuting- attorney, and that they have never been authorized toempannel and summon juries; — a fact which certainly did not escape the attention of the conventions which framed the two last Constitutions. They must also have borne in mind that, in England, the Magna Charta provided expressly that no one should be tried, imprisoned and punished “ nisi per legale judicium parium suorum, vel per legem term; ” and yet, that Justices of the Peace were authorized to try certain offenders summarily. Upon this subject Blackstone says: “• Ry a summary proceeding I mean principally such as is directed by several acts of Parliament, (for the common law is a stranger to it, unless in the case of con-tempts,) for the conviction of offenders, and the infliction of certain penalties createi] by those acts of Parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendances to try every minute offence.” IT Blackstone’s Com., p. 279.

The object of conferring jurisdiction over minor offences to the Recorders and Justices of the Peace, — whoso courts are of limited jurisdiction, — is that such cases may be disposed of summarily and with despatch. It is for this reason that their cognizance is transferred from courts, so constituted and organized as to admit of a regular trial by a jury of the vicinage, and of prosecution by indictment or information, — to other courts which have never been so constituted and organized.

The Legislature might have empowered the Recorders and Justices of the Peace to try the accused without the intervention of any jury; it is not conceived in what respect he lias been injured, because the Recorder who tried this case deliberated and voted with the three slave-holders who sat as jurors. The Act certainly authorized him to do so ; nor is there, apart from the 103d Article of the Constitution, any other provision in that instrument, limiting or curtailing the power of the Legislature to fix the number of jurors that will sit in any given case, or to declare what shall be their qualifications. State v. Jones, 8 R. 582; State v. Mullen, 14 An.

The Article 103, guaranteeing the right of trial by jury, is the general rule, to which the Article 124 forms an exception: the former proclaims a rightthe other recognizes a class of cases to which that right does not extend. In other words, the Art. 108 has no application whatever to that class of offences which are to be tried summarily, without the intervention of an impartial jury of the vicinage.

Is it true that the Article 124, under the sanction of which was passed the statute in question, contemplates that the Recorders, Mayors, Aldermen, and Assistant Aldermen shall try the cases within their jurisdiction by themselves, under pain of nullity? The Constitution nowhere says so. On the other hand, the Legislature is vested with absolute right of legislation, except when restricted by the organic law. There is such a restriction with regard to jury trials, as a general rule; but this restriction, as we have seen, does not hold when the offence or crime falls within the jurisdiction of Recorders ; the Legislature, consequently, can organize the courts of these municipal Judges, for the summary disposition of their criminal business, on such a plan as meets its better judgment. In doing so, they may authorize these officers to act as well by themselves, as with the assistance of a jury, the formation of which is entirely left at the will of the lawgiver.

As the mode of trial before the Mayor and Recorders has none of the forms and solemnities of an ordinary trial by jury, and indeed, does not fall under the operation of the constitutional clause, with respect to an impartial trial by a jury of the vicinage, wo deem it unnecessary to express any opinion on the question as to the number of jurors required to constitute that body, either at common law, or by the Constitution of this State. There is no necessity, therefore, to determino whether, or not, it be sacramental to have twelve men in the Petit Jury. It has lately been decided, however, with regard to the Grand Jury, that, although the statute requires sixteen jurors to be drawn and sworn, yet, that this number is not sacramental. State v. Delia Swift, alias Bridget Fury, 14 An. 827.

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

Merrick, O. J.,

dissenting. I do not dissent from so much of the opinion of the majority of the court as holds that the Legislature may confer a limited criminal jurisdiction upon the Mayor, Recorders and Aldermen, for the punishment of minor crimes and offences. Whether the Legislature can confer the like power upon Justices of the Peace, relative to the punishment of white persons, is not necessary now to determine.

The 124th Article of the Constitution expressly declares, that the Legislature may vest in the Mayor, Recorders, Aldermen and Assistant Aldermen, such criminal jurisdiction as may be necessary for the punishment of minor crimes and of-fences, and as the police and good order of said city may require.

Here, the jurisdiction which may be conferred is not merely that of Justices of the Peace, that is, as conservators of the peace, but it is the judicial power of pronouncing judgment on offenders guilty of minor crimes and offences.

On this point there is no room to doubt. But here arises a question of some difficulty, viz, how are proceedings to be conducted before the Mayor, Recorders and Aldermen ?

This can best be answered by recurring to the abuse or evil which this provision of the Constitution was intended to correct.

It is well known, that prior to the Constitutions of 1845 and 1852, the Recorders of this city were in the habit of exercising a summary jurisdiction over petty offenders, which became almost indispensable to the good government of the city. Yet their sentences and decrees were declared null and the prisoners discharged whenever a writ of habeas corpus was sued out from any higher tribunal.

The Article in question was, without doubt, inserted in the Constitution to enable the Legislature to invest the Mayor, Recorders and Aldermen with this summary power. And as they have never been attended in their jurisdictions with Grand Juries, Petit Juries and District Attorneys, it was doubtless the intention of the convention to vest the power of trial and judgment in them alone upon the first hearing of the cause, without the delay consequent upon more regular proceedings.

It does not, therefore, appear, as I think, that proceedings in these inferior jurisdictions were to be controlled by Art. 103 of the Constitution, which requires an indictment or information, and a trial by jury.

As it was in the power of the Legislature to confer jurisdiction upon the Mayor, Recorders and Aldermen, for the trial of the offence denounced in the Act of 17th of March, 1859, the question then arises, was it unconstitutional to aid them in their deliberations by the assistance of three so called jurymen or additional judges?

The statute provides, that upon the arrest of any party or parties violating the Act, they (the Recorders) together with a jury of three slave-holders summoned by them, shall pass a final verdict and enforce the penalties aforesaid.

No doubt, the Legislature would have power to cause a jury of twelve persons to be summoned before the Recorders for the trial of minor offences; for this would be in accordance with the common law and the general provisions of Article 103 of the Constitution.

But could the Legislature confer the power upon a so called jury to be composed of the Recorders and three slave-holders, to try the offence, instead of the Recorder alone or a regular jury of the vicinage ?

If such trial could be supposed to exert a more unfavorable influence upon the fate of the accused than a trial before the Recorder alone, then the law should be declared unconstitutional. For the Constitution has only authorized the Legislature to adopt two modes for the trial of minor offences, viz, by the Recorder, Mayor, Aldermen and Assistant Aldermen, or in the usual manner, to-wit, by “ an impartial jury of the vicinage.” The term “jury of the vicinage” is one well known to the common law, and when used in the Constitution, must be held to mean a body composed of twelve impartial men of the vicinage. See Story on the Constitution, sec. 923 ; 3 Peters, 446 ; 11 How. 437.

Por the trial by jury has been considered of common right, and one of the most sacred safeguards against oppression under the common law. It has always consisted of twelve men, and a verdict of a less number has ever been regarded in the criminal law as of no validity.

Now, if the Legislature has the power to modify this institution, by reducing it from twelve to three men, it may reduce it to one, and make that one the perpetual trier of all issues of fact. In other words, make him the sole judge of the facts. Any attempt, therefore, to reduce the number of jurors in the jury trial, should be viewed by the courts as an attack upon the constitutional rights of the citizen, and should be declared of no effect. 3 Peters, 446.

The three slave-holders, under the Act of 1859, are not therefore a jury as contemplated by the 103d Article of the Constitution.

Neither can their agency in the trial of the case be regarded as favorable to the accused. They arc selected from among slave-holders, in order that they may be more vigilant and firm in punishing the offence of selling liquor to slaves. Their feelings may justly bo supposed to be aroused, if their prejudices are not excited on the questions they have to decide. Hence, their agency in the trial cannot be considered as particularly favorable to the accused; but on the contrary, it may exert an unfavorable influence upon the mind of the Recorder. The defendant may, therefore, justly complain of the mode of trial, and insist that ho shall be tried by the Recorder alone, or if by a jury, that the same shall be an impartial jury of the vicinage, which shall consist of the number known to the common law and the Earners of the Constitution.

It is supposed that, inasmuch as Article 124 of the Constitution is exceptional to Article 103, that therefore the Legislature may adopt any form of jury for the trial of minor offences it shall see fit.

I have just shown, and it is so admitted, that the framers of the Constitution did not contemplate that the Recorders &e. were to be attended by juries at all.

Then, when it conferred jurisdiction on them, it was not intended that it should be shared by others. The court formed of a Recorder and three slave-holders is not the same thing as a court composed of the Recorder alone. Now, it is conceded, that Art. 124 confers upon the Recorders the power to try issues of law and fact in a summary manner. If the Legislature can authorize other persons to assist the Recorders to try issues of fact, why may they not be retained to try issues of law ? There is no difference. If because the Constitution has not ex pressly prohibited such assistance in the case of Recorders, why might not this court be assisted in the same way in the trial of issues of fact and law ? It is not expressly prohibited by the Constitution, but every one must see that it is forbidden by necessary intendment. This kind of auxiliary jurisdiction was attempted by the Legislature in reference to the District Court in an Act entitled “ An Act to provide for the trial of recused cases out of the city of New Orleans.”

In the case of the State v. The Judge of the Sixth Judicial District, this court said : The Article 81 declares that the Judges of the several inferior courts shall be elected by the qualified voters of their respective districts or parishes.” (In the case of Recorders, add, it is by the “ citizens of the city of New Orleans.”) The court proceeds, “ Power, therefore is granted to the Legislature to establish inferior courts; but the power to choose the Judges thereof, when established, is vested elsewhere — -namely, in the qualified voters of the particular district or parish.”

“ The Constitution having thus provided in terms not of permission, hut of command, how Judges of inferior courts shall be chosen, it follows that the Legislature had no power to prescribe any other mode. 9 An., p. 62. See also the case of the State v. The Judge of the Twelfth District, 9 An., p. 64.

In regard to the Article 103 of the Constitution, which declares that the jury iu criminal cases shall be an impartial jury of the vicinage, I think this court would have power, notwithstanding the dictum in 8 Rob. 582, to declare a law unconstitutional where it clearly violated this right of the citizen ; for example, a law which declared that a jury to try the accused should be composed of the relatives of the injured party, or of persons who had suffered like injuries themselves, and in all cases where jurors are selected because they may be supposed to have prejudices against the accused.

Such persons cannot be deemed impartial jurors. If not, this court is required to pronounce null any law declaring such jurors competent.

Looking to this view of the Constitution, it may also be seriously questioned whether slave-holders, on whom the injury of drunkenness in their slaves principally falls, are as a class without prejudice against those who are suspected of selling liquor to slaves.

However this may be, I think the Act unconstitutional, because the law neither entrusts the decision of the cause to the Recorder alone, nor provides him with an impartial jury of the vicinage as known to the common law and our present and previous Constitutions.

Same Case — Ok a Re-hearing.

Vookhies, J.

The defendant’s counsel seem to have so far misunderstood the opinion of the court, as to state, in their brief on a re-hearing, “ that no other reason is assigned by the court for the conclusion to which it came, unless, indeed, it be one founded upon the inconvenience of trying cases before Recorders with juries.”

A simple inspection of the two opinions delivered in this case, will convince any one that this inconvenience was considered by the court merely as one of the reasons which prompted the Convention in the adoption of Article 124 of the Constitution.

The right of the Recorders to try cases summarily, does not, we think, arise ex necessitate rei, but is derived under the provisions of the organic law.

In the case of the City of New Orleans v. Eliza Costello, the court had said : “ The third section of the ordinance authorizing a prosecution before the Recorder, does not violate Article one hundred and three of the Constitution, which requires prosecutions to bo by information or indictment, because the same Constitution expressly authorizes the Legislature to vest.in the city Recorders such criminal jurisdiction as may be necessary for the punishment of minor offences and crimes, and as the police and good order of the city may require. Constitution, 124.” 14 An. 37.

On that occasion the Articles 103 and 124 of the organic law had been considered, with reference to each other ; and the result of the inquiry was that some causes might be tried summarily before the Recorders of New Orleans. In the case under consideration, we went more lengthily in the investigation of the constitutional question, raised by the appellant; and considered, as we now consider, that we had given, for our conclusions, reasons derived from the organic law itself, and not, as stated by counsel, from the inconvenience to which a contrary decision would lead.

It was stated in our former opinion, that the Recorders, previous to the year 1845, had exercised summary criminal jurisdiction. “ Now,” says the defendant’s counsel, “ we have no hesitation in saying, with entire respect to the court, that the supposed fact upon which the reasoning of the court rests, is no fact at all. One of the undersigned was Attorney General of the State for some years, and, up to February, 1853, and during his term of service, certainly no such cases occurred; and he never, before 1845, ever heard of any such cases as those referred to by the Chief Justice and the court. We make this statement with every means of knowing what has occurred in New Orleans in relation to this matter, and are quite sure that no member of the bar of this city will dispute the correctness of what we say.”

This contradiction of a statement made in the decision of the cause, naturally drew our attention. Pains were taken to ascertain how the matter stood ; and the following document will, it is hoped, set it at rest:

“ State of Louisiana, Parish of Orleans.
“ I, the undersigned authority, do hereby certify that from an inspection of the books of my office, as early as the year eighteen hundred and thirty-eight, it appears that the Recorder of this district of the city of New Orleans, has habitually exorcised summary criminal jurisdiction by the infliction of fines and imprisonment, in a variety of cases, including even the offence of selling liquors to slaves ; and that the entries on the books of the office during that period, show this fact.
“ Given under my hand, this 9th da.y of April, A. D. 1860.
“ J. Cluzart, Assistant Clerk.

But it is objected, that when Article 124 of the Constitution came up in the Convention, an amendment offered, with the view of dispensing with the trial by jury, was voted down.

We are referred to the following extract from the journal:

Mr. Collins then moved to insert at the end of the Article, the following words : and in case of misdemeanors, the trial by jury may be dispensed with, provided the accused consents.......
“ The question being then on the amendment offered by Mr. Collins, the President put the motion on its adoption, which was lost.
“ On motion, the Article was adopted without amendment.”

Two things will be noticed with respect to this amendment. In the first place, the object of the Article was to enable the municipal Judges to try summarily those minor offences, which relate to the police and good government of the city ; whilst the amendment had in view misdemeanors in general. And, in the second place, the amendment would have defeated the summary trial, by leaving this matter at the option of the accused. Hence the rejection of the amendment.

It is an error to suppose that, under this view of the question, the Legislature might authorize the city Recorders to try felonies in a summary manner. A felony is not a minor offence — and still less a minor offence, relating to the police of the city. The 124th Article of the Constitution refers to a particular class of misdemeanors, among which must be enumerated the traffic of spirituous and intoxicating liquors with slaves, as affecting the police and good government of the city.

The last objection to be met is, that the Article of the State Constitution as interpreted by this court, is in eonilict with the ordinance of Congress admitting Louisiana in the Union.

Congress did require of the Territory of Orleans, a Constitution guaranteeing the right of trial by jury in all criminal cases. But it is a novel doctrine, that a mere Act of Congress can bind a sovereign State of this Union for all time to come, with regard to the administration of her criminal justice.

It is, therefore, ordered, that our former opinion, in this cause, be affirmed.

Merrick, O. J., I adhere to my former opinion.


author: Land, J. Land, J.

text:
    J. & R. Quigly v. J. H. Muse—George Keller, Intervenor.
    In a Slate governed l)y the common law, the title to personal property sold to the wire vests absolutoria the husband.
    At common law, the wifo’s estate being secured to her separate use by virtue of an ante nuptial agreement does not confer the capacity to buy property and contract obligations that a married woman separated m property from her husband enjoys in Louisiana.
    At common law. all contracts not under seal, are contracts by parol.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.

      J. E. Hunter, for plaintiffs.
    J. II. Muse, in pro. per., defendant and appellant.

      W. J. Hamilton, for intervenor.
   Land, J.

This is a petitory action for the recovery of a slave, and the plaintiffs claim title by virtue of a parol gift purporting to have been made to them on the 19th day of November, 1834, in the county of Amite, in the State of Mississippi, by their grandmother, Mary Thompson.

The title of the grandmother was acquired by purchase from Philip Quigly, the father of the plaintiffs, in the State of Mississippi, where the common law prevails, in the year 1821. The nature and effect of her purchase of the slave must be determined by the law of that State. She was at the time a married woman, and incapable of contracting and acquiring either the possession or ownership of personal property independently of her husband. The title acquired to the slave vested absolutely in the husband, in the same manner as if the sale had been made directly to him ; and the grandmother was without capacity, as well as title, to give or donate the slave to the plaintiffs. 1 Blaclcstone, 442, note 42.

The gift of the slave to the plaintiffs was not accompanied by delivery, but was to take effect after the death of the donor, who reserved to herself the use and possession of the slave during the term of her natural life.

Such a donation inter vivos, under our law, is void, and the simple acquiescence of the husband will not be considered here as giving validity and effect to the parol gift of the slave, by his wife, to the plaintiffs, as against the claims of third parties.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court bo reversed, and that the verdict of the jury be set aside. And it is now ordered, adjudged and decreed, that there bo judgment in favor of the defendant, with costs in both courts.

Merrick, C. J., declined to sit in this case.

Same Case — On a Re-hearing.

Land, J.

The plaintiff’s counsel is in error in supposing that a married woman, under the common law, whose estate is secured to her separate use by virtue of an ante-nuptial agreement, has the same capacity to buy property and' contract abligations, that a married woman, who is separated in property from her husband, has under the law of Louisiana.

So absolute is the incapacity of a married woman, at common law, to contract, that it has been held, in England, that she is not liable on her contracts, although she live apart from her husband in a state of adultery, and there exist a valid divorce a mensa et thoro. Ohitty on Contracts, p. 40.

And even under the Mississippi statutes, changing the common law, and securing to married women the ownership and enjoyment of their property, free from the control, debts and liabilities of their husbands, it has been held that the incapacity of the wife to contract still exists, in all cases in which it has not been specially removed by statute. Davis v. Foy, 7 S. & M. Mi. R. p. 04.

Whether the gift of the slaves in question was, by deed or parol, is immaterial to the decision of the.question in this case. It, however, may be stated that, at common law, all contracts not under seal, whether verbal or written, are contracts by parol; and that as the act of gift of the slaves, although in writing, has no seal on it, nor even a scroll as a substitute for a seal, it was, as stated in the opinion of the court, a gift by parol and not by deed. Ohitty on Contracts, p. 2 ; 4 Kent’s Commentaries, p. 452.

The grandmother of the plaintiffs never had any title in law to the slaves, which she could convey by gift or otherwise.


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    Andy Foster v. William Mish.
    Under Article 10 of the Civil Code, the form and effect of a deed of manumission made in another State is governed by the laws of the State wkero it was made, and where it was to have its effect.
    In giving effect to such a deed made in a Slate where the common law is known to prevail, tho Supremo Court will judicially take cogmzanco of this fact and will give full effect to the deed, if it is sufficient in form and effect in the common law States of the Union, in the absence of statutory enactments to the contrary, to confer upon a slave a full and perfect title to his freedom.
    The Act of 1857, prohibiting the emancipation of slaves, does not prevent a free person of color who has been wrongfully and illegally deprived of his freodom, from bringing a suit to recover his liberty.
    PPEAL from the Fourth District Court of New Orleans, Price, J.

      Hart & Martin, for plaintiff and appellant.

      Geo. S. Lacy, for defendant.
   Land, J.

The plaintiff sues for the recovery of his freedom, on tho ground that his mother, a colored woman, was free, and in the enjoyment of her freedom at the time of his birth.

. To establish the alleged freedom of his mother, the plaintiff offered in evidence a deed of manumission, signed, sealed and delivered by John Foster on the 25th day of June, 1838, and duly recorded on the same day, in Clark County, in the State of Kentucky, by which she was manumitted and set free anterior to the time of his birth.

He also offered in evidence the testimony of witnesses, which proves that his mother, since the date of the deed of manumission, has been constantly recognized in the State of Kentucky as a free person of color, and has been continuously in the actual enjoyment of her freedom from that date.

He further proved that, his acknowledged status in the State of Kentucky was that of a free person of color, from the time of his birth up to the time of his removal from that State, a period of some fifteen years.

Under Article 10 of the Civil Code, the form and effect of the deed of manumission are governed by the laws of Kentucky, where it was passed or executed, and where it was to have its legal effect, and not by the laws of this State, as contended for by defendant’s counsel. We judicially take cognizance of tho fact, that the common law prevails in the State of Kentucky, and that a deed is one of the most solemn and authentic instruments known to that system of laws, by which the rights of property can bo alienated, and that it is sufficient in form and effect, in the common law States of this Union, in the absence of statutory enactments to the contrary, to transfer to and vest in a slavo a full and perfect title to his freedom.

If, 'therefore, the effect of a deed as a common law instrument of conveyance, has been changed by the statute law of Kentucky, in the matter of the manumission of slaves, of which statute law we cannot take cognizance without evidence, the defendant should have shown it by proof, which, however, he has failed to do.

It is a grave error to suppose, that free persons of color, who have been wrongfully and illegally deprived of their freedom, and sold into slavery in this State, have no right of action in our courts for the recovery of their liberty. If no right of action in such cases existed, then free negroes might be kidnapped in any part of the Union, and sold into slavery in this State, with impunity — a species of slave-trade, which our Legislature never intended to legalize by the Act of 1857, prohibiting emancipation.

The defendant called his vendor in warranty; but as it appears from the record that he is dead, the call in warranty must be dismissed for the want of proper parties, if not for the want of jurisdiction.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that there be judgment in favor of the plaintiff', and that he be declared a free person of color, and as such entitled to the enjoyment of his freedom, and that he recover the costs of this suit in both courts. And it is further ordered and decreed, that the call in warranty bo dismissed, at the defendant’s cost.


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    Succession of Daniel Sullivan.
    An administrator cannot, on appeal, liavo a judgment apparently regularly rendered, homologating an account ol his administration, set aside, on tho ground that the attorney who tiled such account was unauthorized to act for him ; he should resort in sueh a case to the action of nullity.
    APPEAL from the District Oourt of the Parish of W. Feliciana, Haralson, J.

      U. B. <& E. Phillips, for administrator, appellant.

      Collins & Leake and Samuel J. Powell, for appellees.
   Buchanan, J.

The administrator of this succession has appealed from a judgment homologating an account of his administration. He alleges in his petition of appeal, filed eleven months after the date of the judgment, that the attorney-at-law who filed the said account of administration, as appellant’s counsel, was unauthorized to file the same.

Appended to the petition of appeal, is an affidavit, by appellant, of the truth of the statements of the petition.

We think, with tho appellee’s counsel, that the appellant has mistaken his remedy. He should have resorted to an action of nullity, if one, pretending to bo his attorney, procured or consented to the entering up of a judgment to his prejudice, without authority. A party cannot thus, upon a mere affidavit to a petition of appeal, treat as null and of no effect a judgment apparently regularly rendered. In this novel mode of proceeding, the parties interested in maintaining the judgment have no opportunity of disproving the truth of the ex parte affidavit of the party east.

The cases cited by the appellant’s counsel in his brief, in support of this proceeding, are inapplicable.

It has been frequently decided, that the authority of an attorney-at-law mast be denied, on oath, by the party whom he has represented in court, and who repudiates him. See the cases collected in Hennen’s Digest, verbo Attorney.

But it does not follow, that the simple affidavit of a party who has been represented in a protracted litigation in the District Court will suffice to annul, on appeal, all that has been thus done in the name of the affiant.

Appeal dismissed, with costs.


author: Yoorhies, J.

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    Hanau & Co. v. Louisiana Mutual Insurance Company.
    Under a marine policy of insurance, there must bo a technical total loss to entitle the assurocl to abandon the vessel, ancl when the insured have not the right to abandon, the captain cannot bo considered ns the agent of the insurers.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      D. C. Lábatt and T. J. Semines, for plaintiffs.

      Race <& Foster and L. Peirce, for defendants and appellants.
   Yoorhies, J.

The ship Columbia, the property of the plaintiffs, was insured for the sum of $24,000, of which, seven thousand by the defendants.

She left Callao, bound for Cowes, on the 12th day of July, 1851, with a cargo of guano, and returned to the former port in distress, having been at sea about thirty hours. •

The captain entered a protest; provoked surveys of the ship ; had appraisements made of repairs ; attempted to borrow money for the purpose of making these repairs ; and, finally, had the property sold for the benefit of whom it might concern. The ship was adjudicated at the sum of $8,800.

There is some conflicting evidence upon matters which affect the issue between the parties; and we would not hesitate to adopt the conclusions of the jury, were it not that questions of law and of fact are intimately blended in this cause— that the jury have not given such a verdict, as to inform us oE their views with regard to the conflict of evidence — and that this is not a case peculiarly within the province of juries. After a careful investigation of the facts and of the law bearing upon them, our conclusion is, that the abandonment of the ship Columbia cannot prejudice the defendants, because there was not a technical total loss.

When the Columbia left the Chincha Islands for the port of Callao, she was heavily laden, and leaked on her way, although she did not encounter rough seas or bad weather. The first mate, when in port, informed the captain of this circumstance ; but to this the latter, as he states in his deposition, attached no importance. However, he proceeded to examine the ship and had some repairs made.

During the thirty hours on her way from, and back to the port of Callao, she strained and leaked considerably. The captain, after consulting the other officers, had concluded that it was unsafe to prosecute the voyage. It is obvious that these injuries were not occasioned exclusively by the stress of weather, of which an account is given by the captain. There were a fresh gale and a chopping sea, it is true; but, had the ship been laden less heavily, and been made perfectly seaworthy before leaving Callao, she could have sailed with safety.

In this connection, it is proper to give an extract from a letter, written by plaintiffs, in answer to one which they had received from the captain of the Columbia-:

“ From the mere fact of her springing aleak the first day out, it seems scarcely possible that the repairs will reach the sum yon name; but you may know of damage that you do not mention. We beg you will bo exceeding careful that the protest is correctly extended, and the surveys are fully expressed. As in your case the vessel was so short a time from port, we trust you will be able to show by the protest, that there were winds and waves sufficient to cause the leak, and all other damage — that it arose from no insufficiency of the ship, or overloading. You must bo aware that the underwriters look with suspicion on all such losses,” etc.

But it is not necessary to rest the case on the fact of unseaworthiness at the time of departure from the port of Callao ; for, admitting' the defendants’ liability for the injuries received by the ship, the question occurs, whether there was a technical total loss, justifying the abandonment, and thereby fixing the liability of the insurance companies ?

’Che different estimates made by the witnesses, arc widely at variance. According to some, it required about $28,000 ; and others testify, that for less than $3,500, the ship could bo substantially repaired. The opinion of these witnesses might be, to a certain extent, reconciled, if their respective estimates were made with reference to difference of opinion as to the repairs that could legally bo required of the insurance company. Those who adopt the higher estimate, seemed to conceive that the ship was to be repaired thoroughly, so as to make her abundantly strong- and staunch, without reference to her age and previous condition.

If w'c take as a test of the injuries sustained, the enormous repairs required by the captain, the plaintiffs are met by the following objection : Considering that the ship had, after her departure from Callao, mot with but ordinary bad weather, she must have been unsoaworthy at the time of departure ! Otherwise, the estimate of $28,000, however correct with reference to the repairs specified in the survey, was unfounded, if the ship was only to be reinstated to her previous condition, before she had been injured, within the terms of the policy of insurance !

We cannot adopt the high estimate of repairs, because the result justified the lower appraisement. The Columbia was sold to Francisco Homan, a naval officer of the Peruvian government, and, after being repaired for the sum of one hundred and ninety dollars, took a cargo of guano for Valencia, and safely made the voyage. This, of itself, would not prove that she was seaworthy; but it is entitled to great weight, from the other concomitant circumstances — that its cargo of guano, a very valuable merchandise, was shipped on board of her without insurance, and that witnesses testify to her seaworthiness, after she had received these slight repairs.

We have no hesitation in saying, that for a comparatively small amount, the Columbia could have been repaired and made seaworthy, within the meaning of the policy of insurance ; and, consequently, that there was not a technical total loss. The duty of the captain was to have the necessary repairs made ; and, although it was impossible for him to effect a loan on bottomry for the sum of $28,000, as advertised by him, it does not appear but that he might easily have procured the necessary funds.

The abandonment and sale of the ship, cannot prejudice the defendants. Against these they have protested from the moment they were notified of the loss. It is true, that “ if the insurers, after the notice of abandonment, suffer the captain to continue in the management, he becomes their agent, and they are bound by his acts” (Marshal on Ins. p. 527) ; but, when the insured have not the right to abandon, the captain cannot be considered, in any event, as the agent of the insurers.

It is, therefore, ordered and decreed, that the judgment of the District Court, on the verdict of the jury, be avoided and reversed; and that the defendants do have judgment against the plaintiffs, with costs in both courts.

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


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    Martha J. Belknap v. Bernard Kendig.
    Where a party sold a slave, with full warranty, which he had previously purchased without any warranty, against the vices and defects proscribed by law — Held: That in an action brought against him by Ins vendoo to vesuiml the sale on the grounds of the existence of a redhibitory disease in the slave, the fact of the exclusion of warranty in the act of sale from his vendor, is not per fte evidence of knowledge of the existence of the disease, and the fraudulent concealment of it on his part, at the date of the sale to the plaintiff.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Michel <6 Koontz, for defendant and appellant.

      T. J. c6 A. G. Semmes, for defendant.
   Land, J.

The object of this suit is the avoidance of the sale of a slave on the ground of a redhibitory disease, and to recover the price paid, with damages.

In order to take the case as stated in the petition, out of the prescription of one year, the plaintiff charges the defendant with a knowledge of the redhibitory vice before and at the timo of the sale, and with a fraudulent concealment of the same from her.

The facts are. that the defendant purchased the slave on the second day of October, in the year 1854, from one Eudalie Orlin, without any warranty against the vices and maladies prescribed by law ; ancl on the thirteenth day of the same month and year, the defendant sold the slave to the plaintiff, with a full guarantee against all redhibitory defects as well as warranty of title. And on the 8th day of September, in the year 185», the plaintiff sold the slave with full warranty to oue Eugenie Girod, who, on the 18th day of February, 185G, instituted against the plaintiff the action of redhibition, and succeeded in rescinding the sale Inst aforesaid, on the ground of an incurable disease in the slave, at its date.

The only evidence or knowledge of the existence of the disease on the part of the defendant, at the date of the sale from him to the plaintiff, to wit, on the 13th of October, 1854, consists of the fact, that the act of sale from Eudalie Orlin to him, the defendant, contained a stipulation releasing the vendor from the obligation of warranty against the vices and maladies prescribed by law.

The defendant pleads a general denial, and the prescription of one year.

The evidence does not show that the defendant sold the slave to the plaintiff with a knowledge of the redhibitory disease of which the slave died. And the exclusion of warranty against all vices and maladies prescribed by law in the act of sale from Eudalie Orlin to the defendant, is not per se evidence of knowledge and fraudulent concealment on the part of the defendant, at the dato of the sale to the plaintiff.

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


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    Richard Hanrahan v. Augustin Leclercq et al.
    The husband cannot plead in compensation to a debt duo by him to a succession, the portion coming to his wife as heir to such succession ; nor can he, as administrator 'of his wife’s paraphernal property, receive in payment of such portion as may fall to her, dcbis due by himself, and by receipting for the same, thereby discharge the administrator from the claims of the wife, as heir-at-law of the estate.
    APPEAL from the District Court of the Parish of West Baton Rouge, Avery, J.

      Thomas O. Morgan, for plaintiff and appellant.

      Barrow & Poye, for defendants.
   Land, J.

The facts of this case, as disclosed by the pleadings and evidence, are stated by appellant’s counsel as follows :

Richard Wall, a resident of the parish of West Baton Rouge, died intestate, unmarried, and without leaving any- legitimate descendants. His heirs are his mother and four brothers and sisters residing in Ireland, and the wife of the appellant, who is also a sister of the deceased, and resides with her husband in the parish of West Baton Rouge.
“ The defendant, Leclercq, was appointed administrator of his estate. At the sale of the property belonging to the succession, Hanrahan became the purchaser of certain lands, slaves and personal property, and complied with the terms of sale, by paying the amount of cash required, and by furnishing his notes for the remainder of the price.
“ The first installment became due on the 1st of March, 1857. On the 35th of September, 1857, the administrator filed an account, in which he sets forth the fact, that he had paid all the debts which had been presented to him, and that there remained in his hands for distribution amongst the heirs, the sum of 1,557 36 in cash. He sets forth in his petition accompanying the account, that Anastatia Wall, the wife of appellant, is one of the heirs, and that there is due to her, as such, the sum of $274 82.
He further states, that besides the cash funds on hand to be distributed, there is due to the Succession of Wall, notes and accounts to the sum of twenty-seven thousand five hundred and nineteen dollars and seventy-four cents, most of which can be collected.
On the third of April, 1858, Leclercq, administrator, sued out the executory process against Hanrahan, which was enjoined. Hanrahan avers, and the fact is not controverted, that he has the administration of the paraphernal property of his wife, and that an acquittance given by him to the administrator of the whole or any part of the succession of her brother, coming to her as one of his heirs, would be conclusive against her; that, according to the showing of the administrator, his (Hanrahan’s\ wife’s interest in the estate, exclusive of the $274 82, would be $4,402 79 ; that he offered to give an acquittance for these amounts to the administrator, and to pay the balance in cash, but the same was rejected, although no opposition had ever been made to the account of the administrator either by the heirs or creditors of the succession.”

If, upon this statement of the case, the plaintiff has any right to enjoin the collection of the debts which he owes to the Succession of Richard Wall, it must be either on the ground, that the portion coming to his wife from the estate, is compensated by his said debts, or on the ground, that he has the right, as administrator of the paraphernal property of his wife, to receive in payment of of said portion, debts due by himself, and thereby discharge the administrator of the succession, from the claims of the wife as an heir-at-law of the deceased.

First. — -Compensation takes place by the mere operation of law, and both debts are extinguished, when two persons are indebted to each other in a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable. C. C. 2203, 2204, 2205.

If the portion coming to the wife be considered a debt due from the administrator of the Succession of Wall, it still would not bo in law, a debt due to the husband, but is a debt due to the wife, whose rights are separate and distinct from those of the husband, and consequently it cannot be affirmed that the administrator of the succession, and the husband, are the reciprocal debtors of each other, in the sense of Article 2203 of the Civil Code.

Pothier says, in treating of compensation, that the debt must be due to the very person who opposes it as a compensation, ejus quod non ii debitur qui convenitur sed alii compensatio fieri non potest.’’ L. 9, Cod. diet. tit.

“ Therefore, I cannot sot oil' against a debt due from myself, one which is duo to a person of whom I am tutor, cr curator, or to my wife, having a separate estate.” Pothier on Obligations, p. 3, c. 4, s. 2, No. 594 ; 10 An. 653.

Second. — In considering the question whether the husband as administrator of the paraphernal property of his wife, has a right to receive in payment of a portion coming to her, as heir from an estate, debts due by himself to the succession, a distinction must be made between his capacity to receive and give acquittances for debts due to her separate estate, and his authority to receive in payment of such debts, as agent, or administrator of his wife, debts due by himself.

It appears to be well settled, that a husband has authority to receive whatever may be due to his wife on account of her paraphernal property, when such property is not proved to be under her solo and separate administration ; and that a payment made to him will discharge the debtor. C. C. 2362; Richard v. Blanchard, 12 R. 524.

But this is not really the question which arises on the pleadings and evidence in this case. The true question is, whether the payment of a debt due to the wife with debts due by the husband, is a valid payment, and discharges the wife’s debtor.

The husband, in the administration of the wife’s separate estate, acts as her mandatary or agent, and his power, or authority to receive his own debts, in payment of debts due to his wife, must be determined by the rules of law which regulate the contract of mandate. And according to these rules, an agent has no authority to take his own obligations in payment of debts due to his principal. Hickey v. Sharpe, 4 La. 337; Nolan v. Rogers, 4 N. S. 145.

The mere receipt or acquittance of the husband, without a valid payment, would not preclude the rights of the wife, nor discharge the administrator of the succession from her demands, as heir-at-law of the deceased.

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