text:
    WELLS’S HEIRS vs. LAMOTHE.
    WESTERN DlST.
    October, 1836.
    APPEAL PROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    When the court fails for the term to which the appeal is made returnable, and the transcript is not filed until the first day of the following term, it will be in time. /
    So where the appeal bond is only signed by the surety, it will be sufficient to maintain the appeal.
    The sale of a tract of land, by an act under private signature, which does not even appear to be recorded, will be good between the parties, when it is shown that the vendee has been in possession under this title for nearly twen ty years. Between the parties and their heirs, such an act forms full proof.
    This is a petitory action, in which the plaintiffs seek to recover a tract of land, five arpents front, by the depth of forty, situated on Bayou Rapides, formerly the property of their ancestor. The plaintiffs allege that they are entitled to this land, in right of their father, as his legal heirs, and that the defendant holds it without title.
    The defendant pleaded the general issue, and averred that he was the bona fide owner and possessor of the land in question, under a good title. That he, and those under whom he claims, have been in possession more than thirty years. He pleads prescription, and prays for judgment quieting him in his title and possession, &c.
    The evidence showed that the defendant derived his title from Wells, the plaintiffs’ ancestor, under a sale and private act, .dated the — day of-181 , and that the vendee had been in the uninterrupted possession of the land ever since, a period of nearly twenty years. The case was submitted to a jury, who returned a verdict for the defendant. From judgment confirming it, the plaintiffs appealed.

      When the court fo whiehth^pi turaabieTandthe transcript is not filed until the first day of the following term, it will be in time.
    So, where the appeal bond is only signed by the surety, it will be sufficient to maintain the appeal.
    The sale of a tract of land, by an act under private signature, which does not even appear to be recorded, will be good between ■the parlies, when it is shown that the vendee has been in possession, under this title, for nearly twenty years. Between the parties and their heirs such an act forms full proof.

      Winn, for the defendant and appellee,
    moved to dismiss the appeal, on the ground that the record was not filed in time. The appeal was made returnable to the first day of the October term, of the Supreme Court, in 1835, at Alexandria, and the transcript was not filed until the first day of the October term, 1836.

      2. The appeal bond is insufficient, not being signed by all the appellants.
    Dunbar, contra.

    1. There was no Supreme Court held at the term to which the cause was made returnable, but the transcript was filed on the first judicial day of the following term.

      2. It is not necessary that the appellant should sign the appeal bond; if the surety signs, it is sufficient.
    The case was submitted without argument on the merits,
   Bullard, J.,

delivered the opinion of the court.

The appellee moves to dismiss the appeal on two grounds : first, that the transcript was not filed on the return day, nor within three judicial days thereafter ; second, that no legal bond has been given, the principals named in that instrument never having signed it..

, I, It appears that the appeal was made returnable on the first Monday in October, 1835, and the transcript was filed on the first Monday of October, 1836. It is shown by the records of the court, that the term of this court for October, 1835, failed entirely, and'no judicial day intervened between the return day and that, on which the transcript was filed.

II. All the appellants do not appear to have signed the bond, but it is signed by the surety. This question was settled in 9 Martin, 34, and 10 Martin, 74.

On the merits, the case is clearly with the defendant. He exhibits a sale from the ancestors of the plaintiffs, of the land sued for. The act, it is true, is under private signature, and does not appear to have been recorded; but the defendant’s possession, under that title for nearly twenty years past, is shown, and between the parties and their heirs, such an act forms full proof.

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


source: Caselaw Access Project

author: Martin, J.,

license: Public Domain

text:
    LECKIE vs. SCOTT ET AL.
    Western Dist.

      October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    Where the plaintiff is interrogated to disclose the truth, respecting, the demand sued on, and he evades answering on a technical objection, it creates a violent presumption, that such disclosure would have destroyed his claim.
    Where the maker and owner of a note, which he gets endorsed by the payees, transfers it to a third person, it becomes an accommodation paper, in which the endorser is merely a surety.
    The surety may avail himself of all the pleas to yjhich the principal is tentitled, except such as are personal to the latter, as non-age, coverture, and the like. He may plead the want of consideration, or an illegal one, as a gaming consideration.
    A partner has no right to use or endorse the signature of the firm, when the endorsement is not made in a partnership transaction.
    It is not clear that one partner can use the endorsement of the firm, for a private transaction, even,, with the express consent of the other. Partners perhaps, have no right to jeopardize the interests of their creditors, by using the name of the firm to secure gambling debts.
    Any person within the verge of the court, may be called on to testify and disclose the truth; and if he is called as a witness, or as a party, to answer interrogatories, he cannot urge or excuse himself that he was not summoned, or had no notice to answer on that particular day.

      So, where the plaintiff'is notified to answer interrogatories, in open court, and no day is fixed, and he happens to be present in court at the trial, and refuses to answer,-Ms presence will be considered a waiver of notice to appear on a •particular day, and he is consequently bound to answer, or on his refusal and neglect, the interrogatories will be taken for confessed.

    This is an action by the holder, against the drawer and endorsers of the following promissory note:

      $500. “AlexandRia, 1st September, 1833.
    “Four months after date, I promise to pay to the order of W. P. & J. B. Scott, five hundred dollars, for value received.
    “R. F. SLOCUM.
    (Endorsed) “W. P. & J. B. Scott.”
    The drawer let final judgment go against him by default, for the amount of the note.
    The plaintiff alleges that demand of payment was made on the drawer, and refused, and that the note was protested for non-payment, and due notice thereof given to the endorsers ; he therefore prays for judgment" in solido, against the defendants, &c.
    J. B. Scott, one of the defendants, pleaded a general denial, and that he was in no way responsible, because the note sued on was given without consideration, as between any of the parties to it, being for a gambling debt, which fact was within the knowledge of all the parties to the note, at the time it was given: that if ever said note was endorsed by his firm, it was without his knowledge or authority, and he is not liable for any transaction of this kind, being for a gambling debt, known to the plaintiff) and in no way connected with his mercantile business. He prays to be dismissed with his costs.
    The defendant, J. B. Scott, further prays, that the plaintiff be ruled to answer the following interrogatories, to wit:
    1st. Was not the note sued on' given to you with the endorsement of W. P. & J. B. Scott upon it, by Slocum, the defendant, for a sum of money which you claimed to be due you from said Slocum ?

      2d. Was not the amount claimed by you from Slocum, anci for which the note was given, made up of sums which had been won from said Slocum by you, at cards; and if not all3 say how much of it was so made up 1

    3d. Was any part of said note made up of amounts or sums won by W. D., of Slocum, and by him transferred to you, with a knowledge on your part, that it had been won 1 If any, say how much.
    4th. Did you ever give any other consideration for the note sued on, than the one as set forth in the foregoing interrogatories 1 If any, state what it was.
    The evidence showed, that the endorsmeht was made by W. P. Scott, one of the partners of the commercial firm of W. P. & J. B. Scott, and that the note was protested during the existence of the firm.
    No day or time having been fixed for the plaintiff to answer the interrogatories propounded by the defendant, J. B. Scott, but the former being in court, the counsel for the latter moved, that he be ruled to answer them in open court, in the presence of the jury, the motion was allowed by the court, and the plaintiff ordered to answer accordingly. This was done after a decision of the court upon argument, that a former order was defective, because no day had been fixed upon, &c ; and the plaintiff failing to answer in open court, as first above ordered, the court instructed the jury, that said interrogatories were to be taken for confessed; to which opinion of the court, plaintiff’s counsel took a bill of exceptions.
    Objections were also made to the defectiveness of the protest and notice of non-payment.
    The jury, notwithstanding the instructions of the court, to take the interrogatories propounded to the plaintiff for confessed, in consequence of the refusal to answer them, returned a verdict against the defendant, J. B. Scott. From judgment rendered thereon, he appealed.

      Winn and Dunbar, for the plaintiff,
    insisted that the defence set up, that the note was given for a gaming consideration, could not avail the endorser, although it might have been good, as between the maker and the plaintiff.
    Where the plaintiff is interrogated to disclose the truth respecting the demand sued on, and he evades answering, on a technical objection, it creates a violentpresumption that such disclosure would have destroyed his claim.
    Where the maker and owner of a note, which he gets endorsed by the payees, transfers it to a third person, it becomes an accommodation paper, in which the endorser is merely a surety.
    The surety may avail himself of all the pleas to which the principal is entitled, except such as are personal to the latter, as non-age, coverture, and the like. He may plead the want of consideration, or an illegal one, as a gaming consideration.

      2. The plaintiff was not bound to answer the interrogatories, because there was no day fixed; the decision of the court, requiring them to be answered forthwith, was erroneous and illegal.
    3. It was an alteration in the pleadings to require the answers after trial had commenced. No plea can then be put in, except the plea of prescription.

      Flint and Hyams, for the defendant and appellant.
    1. The party was present in court when the trial commenced, and there could be no objection to a motion, that he should be ruled to answer forthwith. He had been previously notified of the interrogatories, and could not be ■taken by surprise, as he was bound to take notice of them. There was no particular time required, and none could be more appropriately selected, than during the progress of the trial.

      2. The equity and consideration can be gone into between all the parties to a note. The plaintiff in this case knew well the note was given for a gaming consideration, and that the endorsement was made by a member of tbe firm, without the consent of J. B. Scott, the present defendant.

      Winn, in reply.
    1. The defendant, Slocum, had a right to pay this debt to the plaintiff, in any way he pleased. He could pay it in an endorsed note of any person, and the parties to the note had no right to inquire for what it had been given. He had a right to get his own note endorsed, and pass it off. An endorsed note passes by delivery, as a bank note.
   Martin, J.,

delivered the opinion of the court.

It appears to us, that if in any instance, justice requires that the case should be remanded, it is the present.

The appellant appealed to the plaintiff for the discovery of the truth, which he evaded on a technical objection. The latter being accidentally present at the trial, the court called upon him to disclose the truth, and he refused to do so; hence a most violent presumption arises, that such a disclosure as he was called on to make, would have destroyed his claim.

A partner has no right to use or endorse the signature of the firm, when the endorsement is npt made in a partnership transaction.

It is not clear that one partner can use the endorsement of the firm for a private transaction, even with the express consent of the other. Partners, perhaps, have no right to jeopardize the interests of their creditors, by-using the name of the firm, to secure gambling debts.

Any person, within the verge of the court, may be -callea on to testify and disclose the truth; and if he is called as a 'witness, or as a party, to answer interrogatories, he cannot urge, or excuse himself, that he was not summoned, or had no notice, to answer on that particular day.

So, where the plaintiff is notified to answer interrogatories, in open court, and no day is fixed, „and he happens to be. present in court afilie trial, and refuses to answer, his presence will be considered a waiver of notice to «appear on a particular day, and he is, consequently, bound to answer, or on his refusal and neglect, the interrogatories will be taken

Presuming the facts suggested by the appellant- in his interrogatories to exist, let us examine their effect upon the case before us. The maker of the note transferred it to the appellee, after procuring its endorsement by the firm of W. P. & J. B. Scott. The former was therefore tbe owner, and if so, it was an accommodation paper, in which the endorser was merely a surety. The surety may avail himself of all the pleas, to which the principal is entitled, except such as are personal to the latter, as non-age, coverture, and the like. He may therefore plead the want of consideration, or an illegal one. In such a case the facts alleged would support the latter plea, to wit: a gaming consideration.

It further appears, that the appellant did not endorse the note himself, and the endorsement not being made in a partnership transaction, his partner had no right to use the signature of the firm.

It is not very clear, that if the note had been endorsed with the special consent of the appellant, the plaintiff could even then have obtained judgment thereon against the firm. Partners, perhaps, have no right to jeopardize the interests of their creditors, by. using the name of the firm to secure gambling debts.

The conclusion at which the court has arrived on this part of the case, renders it unnecessary to notice the 'clerical mistake in date, as respects the notice of protest.

- In remanding the cause, it becomes necessary to inquire into the propriety of the charge of the district judge, to the jury, with a view to ascertain whether any direction is to be given by this court.

It appears to us, that our learned brother did not err. Any person within the vergé of the court, during the trial, may be called upon to disclose the truth. If he be called as a witness, he cannot urge that he was not summoned. If he be called upon as a party to the suit, he has no better right to excuse himself on the ground that he was not ruled to answer on that particular day. The court will, however, see that he is not taken by surprise. In the present case, the plaintiff had been notified to answer interrogatories in open court, and necessarily during the trial. No particular day had been fixed, consequently no advantage could have been taken of his failure. His presence at the trial was a waiver of notice to appear on a given day; he was therefore bound to answer the interrogatories, or submit to the consequences of his refusal or neglect. Thus the jury were correctly instructed to take the interrogatories pro confessis.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the verdict set aside, and the case remanded for a new trial; the plaintiff and appellee paying the costs of this appeal.


author: Martin, J.

text:
    BACA vs. RAMOS ET AL.
    WkstehN Dist.

      October, 1836.
    APPEAL PROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, THE JUDGE OP THE SEVENTH PRESIDING.
    Where a commercial partnership purchases immovable property, as - a house and lot, which is paid for out of the partnership funds, and the title taken in the name of the firm, the partners become joint owners, and either may sell his undivided share, which is also liable to seizure for his private debts.
    The title is in the partner for his undivided share of real estate, which may be sold by him or by his creditors, but when the property belongs to a commercial partnership, he must account to his co-partners for the price or value thereof. ;

      So where a partner sells his interest in the partnership to his co-partners, for a certain sum, he cannot afterwards demand a sale for a partition of certain real estate, held by the commercial firm of which he was a member, as the price or value belongs to the other partners. 1 *=
    The courts of Louisiana, acting on principles of equity, will enforce the rights of the equitable owner to immovable property or rights, by compelling the legal one to make a conveyance.
    This is an action instituted in the first place, to rescind a sale or transaction, by which the plaintiff sold his interest in a commercial partnership to his co-partners, on the score of lesion, and to recover the one third of an undivided interest in a lot of ground which had been purchased, and the title taken in the name of the firm while he was a member.
    The plaintiff alleges, that in May, 1833, he sold his one third interest in a partnership stock, to his two co-partners, for two hundred and fifty dollars, on their representation that this was an equitable division. He had confided the business to his co-partners, but has ascertained that the property of the concern was worth at least three thousand dollars, which would have given him a share of one thousand dollars. That he was deceived by the defendants, who had charge of the books and accounts, and knew well the worth and condition of the firm, and in consequence, he has suffered great loss or lesion, and is entitled to relief; and further, that he is the owner of one third of a lot of ground purchased jointly with his co-partners during the partnership.
    He prays judgment for the sum of seven hundred and fifty dollars, and that the lot of ground in question be sold, to put an end to the indivisión that exists, and the one third of the proceeds be paid over to him.
    The defendants pleaded the general issue. They aver, that the partnership was dissolved the 23d of May, 1833, and that the plaintiff received for his share two hundred and fifty dollars, and gave his receipt therefor, and assent to the transaction.
    The evidence'disproved the allegation, that the plaintiff had suffered lesion; but it appeared, that a short time before the dissolution of the partnership, in April, 1833, a house and lot were purchased by the firm for five hundred dollars. The act of sale states, that the vendor “ sells to Joseph Ramos, Antonio Baca, and Jose Preba, partners, trading in the town of Natchitoches, under the firm and style of Joseph Ramos & Co., one half of a lot of ground, &c. in consideration of having received from Ramos & Co., the sum of two hundred and fifty dollars, and their promissory note for two hundred and fifty dollars, secured by mortgage on the premises,” &c.
    merciSpartner-¡mmovabíípro-perty. as a house paid for out of fonasPai'anar1he titletaken in the name of the firm, the partners be-errand'0either may sell his undivided share, which is also liable to seizure for his private debts.

      The receipt of the plaintiff, which he gave on the dissolution of the firm, in May following, expresses on its face, that he has received from the other two partners two hundred and fifty dollars, for his share of the partnership, and gives a full acquittance.
    The district judge gave judgment for the plaintiff, that the lot be sold and the proceeds divided equally among the three partners. The defendants appealed.

      Gayoso, for the plaintiff.

      Dunbar, contra.

   Martin, J.

delivered the opinion of the court.

The defendants are appellants from a judgment which decrees the sale of a house and lot, (purchased by the parties to this suit, during the existence of a commercial partnership between them,) for the purpose of making a partition.

It appears that after the purchase, the partnership was dissolved by agreement, under which the plaintiff received the sum of two hundred and fifty dollars, as the amount of his interest in'the partnership concern. The defendants having paid this sum to the plaintiff, retained the possession of all the property of the partnership, and continued' in the business of the concern.

' . • , , . ... The only question which this case presents, is, whether the house and lot was part of the partnership property. ,

The counsel for (he plaintiff and appellee, contends that ..... . . this is joint property, m which he is joint owner, and not partnership property. Louisiana Code, 2796. 3 Louisiana Reports, 496.

The title is in the partner for liis undivided share of real estate, which may * be sold by him, or by his creditors 5 but when the properly belongs to a commercial partnership, he must account to his co-partners for the price or' value thereof. •

So, where a partner sells his interest in the partnership to his co-partners, for a certain sum, he cannot afterwards demand a sale for a partition of certain real estate held by the commercial firm, of which he was a member, as the price or value belongs to the other partners.

The courts of Louisiana, acl-ing on principles oi* equity, Will enforce the rights of the .equitable owner to immovable property or rights, by compelling the legal one to make a 'Conveyance.

The act of sale, by which the premises was acquired, shows that the purchase was made by the parties to tbis'suit as partners, trading under the firm of Joseph Ramos & Co., and a note was given for one half of the price, bearing the signature of the firm. The partners were joint owners, and either of them might have sold his undivided share or interest in the property, which was liable to seizure for his private debts. 3 Louisiana Reports, 496. But in case of such sale and seizure, he must have accounted to his partners for the price. Neither conld he have occupied any part of the property for his private use, without compensating his co-partners. In fact, the title to one undivided third was in him, but the value thereof belonged to the partnership. When the plaintiff withdrew from the partnership, and received a given sum, he relinquished his interest in the value of the house and lot in question to his co-partners. He has, therefore, no right to demand a sale for a partition, as immediately after it, the price, being the value of the premises, would instantly become the property of .the defendants. .

The distinction which we have taken between the title, by which the property is held, and the value thereof is well known in the other states of the Union, where the common law prevails. These rights are there distinguished by the expressions, “ legal title,” and “ equitable title.” There, courts of equity enforce the rights of the equitable owner, by compelling the legal one to make a conveyance to the other, precisely as this court did in the case of Hall vs. Sprigg, 7 Martin, 243.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District be annulled, avoided and reversed, and that ours be for the defendants, with costs in both courts.


text:
    RUSSELL vs. SPRIGG.
    Westbiut Dist.
    October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. ,
    Tho clerk of the District Court is a competent person to become surety in an appeal bond, taken in his own court.
    In an action of lesion beyond moiety, the word imposition is technical, and does not amount to fraud, which authorizes the vendor to have the sale declared absolutely null and void.
    Actions receive their character from the nature of the relief sought, and an amendment which alters the substance of the original demand in this respect, is inadmissible.
    So in an action of lesion outre moitié, in which it is alleged the vendee cifeeted the sale and purchase by imposition, an amended petition is offered, alleging fraud and false promises, it will be disallowed, as changing the substance or nature of the original action.
    In an action for the rescission of a sale, on account of lesion, a witness, who is a mortgage creditor of the plaintiff, from the recording of a judicial mortgage, which would attach to the land sought to be recovered, is not incompetent to testify, on tho part of the plaintiff, on the score of interest.
    . This is an action to rescind a sale.of a tract of land, on the ground of lesion, beyond moiety.
    The plaintiff alleges, that in December, 182S, he arrived in the parish of Rapides, from Mobile, and being exceedingly epfeebled in body and mind, he'was induced to sell to the defendant, a tract of land in said parish, for five thousand dollars, which was at the time, well worth twelve or fifteen thousand dollars. That said sale was effected by imposition, on the part of the purchaser, and that there is lesion beyond moiety to his injury, seven thousand dollars. He prays that the said sale be cancelled, annulled, and set aside, on account of the lesion to his injury. The defendant pleaded the general issue.
    The plaintiff moved the court for leave to file an amended petition, alleging the sale in question to have been obtained by fraud, and false and fraudulent promises, and obligations by the defendant, and by promises and engagements on bis part, forming the consideration which he has never complied with. This leave was refused, and the decision of the court excepted to.
    On the trial, the plaintiff called a witness whose competency was objected to, on the score of interest, and rejected by the court as incompetent. He stated in his examination, on his voir dire, that he was interested so far as this, that if the plaintiff succeeds, he holds a recorded judgment against him, which operates on all his property, and which, he believes, can be enforced against the disputed premises if they are recovered; and he knows of no other means by which he could possibly obtain payment. A bill of exception was taken to the opinion of the court, rejecting this witness.
    This action is founded on the 1854th article of the Louisiana Code, which says : “ Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy given for this injury, is founded on its being the effect of implied error or imposition, for in every commutative contract, equivalents are supposed to be given and received.”
    The cause was submitted to a jury, who returned a verdict for the defendant. The plaintiff appealed.

      Dunbar, Thomas and Boyce, of counsel for the defendant,
    moved to dismiss the appeal, because it was not taken according to law. The clerk of the court, who is required by law to take good security, is himself the surety in the appeal bond. This is illegal and the bond void.

      Winn, contra.

    The case was submitted without argument on the merits.
   Martin, J.,

delivered the opinion of the court.

This is an action of lesion outre moitié. The plea is the general issue.

The clerk of ¡s^'competent person, to become surety in an appeal bond, court.m ^

lesion”beyond moiety, the word technical” and does not amount to fraud, which authorizes the vendor to have ahsoiuteiyClnidi and void.

The plaintiff offered an amended petition, which was rejected. There was judgment against him and he appealed.

The dismissal of the appeal is prayed, on the ground that the clerk of the District Court is the surety in the appeal bond, and it is urged, that it is made his duty by law to take the bond, and to judge of the responsibility of the surety.

No law is, however, cited, constituting the clerk the exclusive judge of the responsibility of the surety in such cases as the present, nor making it his duty to take the bond. The judge may certainly take it himself, or order it t t i . to be taken., In the first case he must, and in the last he may, approve of the surety. Indeed, an appellant apprehensive of any difficulty from the clerk, might offer his surety to the judge for his approval. In the present case, nothing shows whether the bond was taken by the judge or the clerk, and if any circumstance shows that it was improper for the latter to take it, we are not to presume therefrom, that it was not taken by the former. The appeal must, therefore, be sustained.

The case is placed before us on two bills of exception; the first is, to the refusal of leave to file the amended petition, and the other, to the rejection of a witness offered by the plaintiff.

I. The object of the plaintiff, in the amended petition, appears to us to have been to change the nature of the action. It alleged that the sale was obtained through fraud, promises, and engagements, which have not been performed, and concludes with a prayer that the sale may be declared null and void.

The original petition states the sale to have been effected by imposition on the part of the purchaser. Hence we have doubted whether the amended petition, alleging fraud, and promises, and engagements not performed, might not be considered as a development only, of the charge of imposition stated in the original petition.

In a charge of lesion outre moiiié, the word imposition is technical. The Louisiana Code, 1854, says this action is founded on implied error or imposition. The plaintiff in this action is not entitled to have the sale declared null and void absolutely, but to have it rescinded, unless the defendant pays the full value of the property sold. .

Actions re-racter ^frómMhe Hef'sou'dit^and an amendment which alters the substance of the original demand, m tins respect, is inadmissible,

So, in an ac-trT °moiti¿n Tñ which it is ai-eftlcted'the'saie impmtion*^ an amended ^peti-alleging fraud’ ses1 ^t^wiii™ e disallowed, as changing the substance or na-*hiai action.°rl”

acti°n in which fraud is charged, as well as the non-performance of the promises and engagements of the . . . * . . purchaser, the vendor is entitled to an absolute rescission or ^le sale, and the vendee cannot avail himself of the faculty of supplying the difference between the price and .the value of the premises, as in the action of lesion outre moitié.

Actions receive their character from the nature of the re^el" sought. The Code of Practice, 419, forbids amend-meriis which “ aher or change the substance of the original demand, by making it different from the one originally i i f „ ^lOUgHt.

R is clear, therefore, that if different remedies are sought 4 3 ° m the two petitions, the amended one changed the substance of the demand in the original, and made it different.

It is true the first petition concluded with a prayer for the rescission of the sale, without mentioning the faculty which the defendant always has in the action of lesion outre moitié, to supply the difference between the price and the value of the thing sold. The facts presented are those that give rise, to this action, for the word imposition must be taken in the sense in which it is used in the code, i. e. the imposition which implied from' the lowness of the price. We have no doubt that.it would have been our duty to reverse the judgment of the District Court, if, on this petition, the defen-c*arit had been refused the faculty of averting the rescission of the sale, by the payment of the difference between the price and value. On the amended petition, it is equally c^ear5 he would not have been entitled to the exercise of.this faculty. It is, therefore, evident that the District Court did , , not err in disallowing the amendment.

II- The witness whose competency was objected to, on the score of interest, is a mortgage creditor of the .plaintiff, and, under a rescission of the sale, his mortgage would attach to the premises in question, and the plaintiff is said to have no other property which could be subject thereto. This interest appears to us too remote. It depends on two contingencies, the success of the plaintiff in the suit, and the refusal of the defendant to avail himself of the faculty , of avoiding the rescission of the sale. The argument of the defendant’s counsel assumes, that this witness is the sole or eldest mortgage creditor of the plaintiff. If the objection was ■sustained, it might be contended that the plaintiff’s judgment creditors, offered as witnesses, ought to be rejected, even when the object of the suit is not the recovery of land on which their mortgages might attach, for the judgment which he might obtain would be liable to their executions. With nearly equal reason, simple creditors might be objected to when the solvency of the plaintiff was doubtful, for in such cases they would have an interest, or derive a benefit from the increase of his property and his means to pay his debts, if he recovered.

In an aotion iortherescission count of lesion, fs ^mortgage recording of a gUage'al ^°ch to be recovered, tent to testify1™, score ofinterest.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the verdict set aside, and the case remanded, with directions to the judge to receive the testimony of the witness objected to; the'.appellee paying the costs of this appeal.


author: Dullard, J.,

text:
    COX ET AL. vs. HUNTER’S HEIRS.
    western Bist.

      October, 1836.
    APPEAL PROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, THE JUDGE OP THE FIFTH PRESIDING.
    Where the succession of the deceased husband is in the hands of the widow and heirs, some of the latter being minors, and it appeared an administrator had been appointed to the succession, but had rendered no account: Held, that the District Court was without jurisdiction in a suit 'against the widow and heirs, for a debt of the husband, except so far as her half of the community is concerned, or she may have intermeddled.
    This is an action instituted by Bartley Cox and others, against the widow and heirs of the late P. H. Hunter, to render them liable for two debts of the deceased, contracted in his life time. The plaintiffs allege that Hunter died in 1830, leaving a widow in community, who is bound for one half of the debts; and also several heirs who inherit the other half of said community, and are consequently bound for one half of the debts thereof. They pray judgment accordingly.
    The defendants declined answering to the merits, and pleaded the following exceptions :
    1st. That the District Court has no jurisdiction of the case.
    2d. That an administrator has been appointed to the estate of said Hunter; and that the Court of Probates is the only jurisdiction that can entertain this suit.
    3d. That these claims were never presented to the administrator for acceptance or rejection; wherefore, they pray that the suit be dismissed.
    The cause was tried on these pleadings and issues.
    The statement of facts showed, that Mrs. Hunter formerly administered on the estate of her husband, but had never rendered an account. That both the widow and heirs accepted the succession, with benefit of inventory, and were in the possession and culture of the plantation ; and that since the institution of this suit, a new administrator has been appointed.
    Upon this evidence, and under the pleadings, the district judge was of opinion he had no jurisdiction of the case, and gave judgment of dismissal. The plaintiffs appealed.

      Elgee, for the plaintiffs,
    maintained that there was no administrator to represent the succession of the deceased; and it being shown that the widow and heirs were in possession, (the minors represented by their mother and natural tutrix,) they are amenable to the general jurisdiction, and suable in the District Court. Code of Practice, 996. 6 Martin, N.S., 519.

      Where the succession of the deceased husband is in the hands of the ■widow and heirs, some of the latter being minors, and it appeared an administrator had been appointed to the succession, but had rendered no account : Held, that the District Court was without jurisdiction in a suit against the widow and heirs, for a debt of the husband, except so far as her half of the community is concerned, or she may have intermeddled.

      Dunbar, contra.

    1. Thought that the case of Roman et al. vs. Roman’s minors, was decisive of this, and that the judgment of dismissal must be confirmed. 4 Louisiana Reports, 202.
    2. The widow cannot be made liable, for it is not shown, or even alleged, that the claims of the plaintiffs were contracted during marriage, or that it is a community debt.'
    3. The widow and heirs should have been sued in the Probate Court. The succession was accepted, with benefit of inventory, and all claims against it should be presented for liquidation in that court.
   Dullard, J.,

delivered the opinion of the court.

This is an action against the widow and heirs of the late P. H. Hunter, to recover a debt due by him at his decease. Some of the heirs appear to be minors, and are represented by their natural tutrix.

The defendants excepted to the jurisdiction of the District Court, averring that an administratrix had been appointed to the estate, and that the plaintiffs’ claim had never been regularly presented for acceptance or rejection.

The court declined jurisdiction of the case, and the plaintiffs appealed.

It was shown on the trial below, that there had been an administrator, whose account had not been rendered, and that since the institution of this suit, the Court of Probates had made a second appointment. The heirs being minors, and the estate necessarily accepted, under benefit of inventory, we are of opinion, that the court did not err, in sustaining the exception, so far as they are concerned. The estate does not appear to come under the provisions of article 995, of the Code of Practice.

But with respect to the widow, against whom judgment is claimed for one half of the debt, as concerned in the community, the same principle does not apply. A community of acquests and gains, cannot be accepted, undér benefit of inventory, and if the widow has accepted the community, or intermeddled in such a manner, as to render her liable for one half the debts she may be sued in the ordinary tribu-lla|Sj an¿ her liability established. As to her, we are of opinion, the court erred in dismissing the suit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed; that the plea to the jurisdiction of the District Court, so far only as relates to the heirs, be sustained, and the suit be dismissed with costs; but that so far as it concerns the widow in her own right, that the plea be overruled, and the case remanded to the District Court, for further proceedings according to law, and that the costs of the appeal be paid by the widow.


text:
    ROWLEY'S HEIRS vs. CHENEY ET AL.
    Western Dist.

      October, 1836.
    APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF RAPIDES.
    On a motion to set aside a non-suit, by a transferree of the claim of one of the plaintiffs, and it is objected on the appeal that he was no party and ■had no interest, the case will not be remanded to inquire into his interest, when the motion was received and acted on in the court below, without this objection being urged.
    In a suit against executors and tutors, to account when the latter file a partial account, and pray for time to render a final one, and objections are made to it: Held, that the Probate Court improperly non-suited the plaintiffs, on the ground of absence of counsel. In the absence of the plaintiffs, the court might have overruled their objections to the account, but could not turn them out of court without a final action on their claim.
    This is an action against W. H. and D. Cheney, testamentary executors of Job Rowley, deceased, and testamentary tutors of his minor heirs, the plaintiffs, to compel them to render an account of their administration, to pay over any balance that may be in their hands.
    The plaintiffs allege, that they are the legal representatives of Job Rowley, who died in 1820, when the defendants became seized of his estate, which amounted to twenty-nine thousand five hundred and seven dollars, according t'o the inventory.
    They further allege, that in 1829, the defendants, without authority of law, sold all the property of the estate to pay the debts, by which they (the minors) sustained a loss of thirty thousand dollars.
    They pray that the defendants be required to render an account, in both capacities of testamentary executors and tutors, and pay over whatever sums that may be ascertained to be due.
    The defendants on being ordered, rendered a partial account, and prayed for further time to make a full and final one.
    The plaintiffs filed exceptions to many of the items in the account rendered, and excepted to blending the two accounts as executors and tutors.
    The case stood on these issues, and was continued for several monthly terms of the Probate Court, when at the December term, 1835, it was called, and the plaintiffs not appearing, a judgment of non-suit was entered.
    Wells, who claimed to be a transferree of one of the parties plaintiff, filed his affidavit, and moved to set aside the non-suit, on the ground that the plaintiffs’ counsel were both absent, one on account of sickness, and the other pn a journey, whose return was anticipated in time for the trial; that trusting to them the judgment was rendered without giving him an opportunity to be heard.
    The court refused to entertain the motion and re-instate the cause. From judgment overruling the motion and affidavit, this plaintiff appealed.

      Dunbar, for the plaintiff.
    Winn, contra.

      On a motion non-suitaSby a transfen-ee^ of of the plaintiffs, Jeeted14 on the appeal, that he 'and had ncTin-wiiTnof^e °remanded to inquire into his interest, when received0"1 and acted on in the court below, without this ob-urged? bein§
    In a suit tmTand ^tore to account, when partial account, tíme hTrender a final one, and made to it: R’obate'13 Court suited^the plaintiffs, on the fence of counsel. of the plaintiffs* the court might have overruled their objections butthfoiddOOUnot turn them out of court without final action on their claim.
   Martin, J.,

delivered the opinion of the court.

The defendants being the executors of the ancestor of the defendants, and also their tutors, were called upon to render an account of their administration in both capacities, and complied with the desire of the plaintiffs, who thereupon filed opposition to the accounts thus rendered,

The suit was continued during the monthly terms of the Court of Probates, from April to December, when the Pontiffs not appearing, a judgment of non-suit was entered, Shortly after, and during the December term, Wells came forward and filed his affidavit, stating that he was the trans-fen'ee of the share of one of the plaintiffs, and that one 0f the attorneys of the plaintiffs had been prevented, by ...... ,7 , 1 indisposition, from attending court on the day the non-suit was taken, and that the other was absent on a journey, although his return before that time had been anticipated ; ° . 17 he therefore prayed that the non-suit be set aside, which wa,s refused, whereupon he appealed.

It has been objected in this court that the appellant was not a Pariy this suit at its inception, during its progress, nor at its termination by the judgment of non-suit, that he has no interest therein, and is not aggrieved by this judgment, wherefore the appellees pray that the case may be remanded for an jnqUjry into his interest.

This has appeared to us unnecessary, as the motion was received and acted upon in the Court of Probates, without absence of any interest in the applicant being urged at the bar, or in the opinion of the court overruling it.

It would have been the duty of this court to reverse the judgment of the Court of Probates, even if the motion to set aside the non-suit had not been made. The absence of the plaintiffs when called, might, at most, have authorized the Court of Probates to overrule their objections.

jt cannot, however, justify turning them out of court ’ . J , , ° without a final action on their claim,

It is, therefore, ordered, adjpdged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and the case remanded for further proceedings according to, law; the appellees paying the costs of this, appeal.


author: Mathews, J.,

text:
    GREEN vs. BOYCE.
    Western- Dist.
    October, 1836.
    APPEAL PROM THE COURT OR THE SIXTH JUDICIAL DISTRICT, THE PARISH JUDGE OE THE PARISH OR RAPIDES PRESIDING.
    Where the defendant received a deed, in 1829, to five hundred acres of land in a Spanish grant, not located and patented, valued at five hundred dollars, for his professional services in procuring from the General Government a location, survey and patent to said grant of a league square: Held, that it appearing from the evidence the defendant was instrumental in procuring an advantageous location, though no patent has issued, he is not liable in an action of lesion beyond moiely on his contr act.
    This is an action to rescind a contract for lesion beyond moiety.
    The plaintiff charges that in 1829 he deeded to the defendant five hundred acres of land, estimated at five hundred dollars, being part of a league square, confirmed under a Spanish grant. That this land was given in consideration of professional services to be rendered by the defendant, in procuring a location, survey and patent for said grant of land, from the general government of the United States.
    He further charges that the defendant has wholly failed to perform said services, by which he has suffered lesion in said contract, exceeding one half of the value of the land conveyed ; that in fact there is an entire failure of the consideration, and the defendant has been guilty of fraud in obtaining said deed. He prays that the deed and agreement between him and the defendant be cancelled and annulled.

      The defendant pleaded the general issue. He avers that the charge of fraud is false and unfounded, and puts the plaintiff on strict proof of every allegation. He further pleads the prescription of four years against the action of lesion.
    Upon these pleadings and issues the case was submitted for trial before a jury.
    So far as the plea of prescription is concerned, the evidence showed that on the 3d of August, 1827, the plaintiff conveyed to the defendant five hundred acres of the land in question, by an act under private signature, to be located on Red River, and within the limits of a league square of land confirmed by congress to Richard Green, in consideration of one dollar per acre, to be discharged as follows: “ He (Judge Boyce) has rendered some professional services, and he is willing to attend to my claim until he obtains a patent for me and pays the fees of office, &c.” ■
    On the 4th of March, 1829, the plaintiff makes another deed confirmatory of the first, declaring, “ that he has heretofore sold and conveyed, and does by these presents sell and convey, a certain tract of five hundred acres of land, being part of a tract confirmed to the said Richard Green, of one league square on each side of the bayou Rigolet, to be bounded in front to the said bayou, &c.” “ In consideration, the said Boyce has heretofore paid to the said Green the sum of five hundred dollars.”
    Suit was instituted to rescind this contract of sale, and service of citation made on the 4th March, 1833, precisely four years after the date of the last deed.
    The judge instructed the jury that the deed of 1829 should be taken as confirmatory of that of 1827, and that an action of lesion was barred by the prescription of four years. That the value of the land was to be estimated at what such land sold for in the neighborhood at the date of this sale. And further, if there was no fraud at the inception of the contract, and part of the consideration performed, the jury should find for the defendant.” The plaintiff’s counsel excepted to this charge as erroneous.

      On the merits it appeared that the plaintiff was the owner of a land claim of one league square, calling for its location at the mouth of Racoon Creek on the Rowgully bayou, (Rigolets) on the north side of Red River, in the parish of Rapides, founded on a permission and grant from the Spanish government. This claim was favorably reported on to congress, and confirmed in 1820, but no actual location or survey was made, and no patent had ever issued to the grantees.
    A variety of testimony was introduced to show the nature and value of the services rendered by the defendant. It appeared that the township which embraces this claim, was surveyed by a deputy surveyor of the United States, in 1813. That the sectional lines and private claims were traced and run out by M'Crummen & Lewis, deputy surveyors, in 1822. It was returned into the Surveyor General’s Office and reported to the General Land Office, with this claim in dotted lines as spurious, and remained in a state of suspense until 1832, after Judge Boyce undertook to get it patented. He wrote to the members of congress from Louisiana, to have the difficulties and objections to the completion of the title removed. In 1832, Judge Bullard, while a member, explained the situation and validity of the claim to the commissioner of the General Land Office, and a patent was1 ordered to issue. ■ Other persons being interested, and not approving of the location, they have refused a patent. It. remained in this condition at the inception of this suit.
    After hearing the parties, and all the testimony of the case, the jury returned a verdict for the defendant. From judgment confirming this verdict, and after an unsuccessful attempt to obtain a new trial, the plaintiff appealed.

      Dunbar, for the plaintiff.

      Judge Boyce, in propia.persona.

   Mathews, J.,

delivered the opinion of the court.

This suit is brought to rescind a contract relating to the sale of real property on account of lesion done to the vendor amounting to more than half the value of a tract of five hundred acres of land, alleged to have been sold to the defendant.

Where the aé-a^eedí hTi 82tt to five hundred acres oi land in a Spanish grant, patentedfvaiued a,4.]™5 hynd','e.<1 dollars, tor his professional ser-ingSS from °°üié menTÍlocation” survey and pa-grant of a league tSkitappearíng from the evi-dcncc the de~ fendant was in-proeuringanad-vantageous location, though no patent has is-liable hv an aotion of lesion beyond moiety on his contract.

The cause was submitted to a jury in the court below, . , ... . who, after hearing testimony, and receiving a charge from the judge a quo in relation to points of law, found a verdict for the defendant, and judgment being rendered in pursuance thereof, the plaintiff appealed.

The charge of the judge relates to a plea of prescription. The case was, however, tried by the jury on its merits, and as we are of opinion that the testimony fully justifies their verdict, independent of the effect which the judge’s charge may have produced on their opinions, it is deemed useless to take into consideration his opinion, (which was excepted to) touching the prescription pleaded.

It appears by the evidence of the case, that the plaintiff had obtained a grant from the former government of the country for a square league of land, for the purpose of erecting a saw mill, &c. The tract thus granted was, by the terms ^ concession, to have been located on a small water course in the pine woods on the north side of Red River, in , L t 7 the parish of Rapides, which falls into a bayou called the Rigolets, which passes through the low lands and connects itself with Red River. This land being much more valuable a than that called for by the grant from the Spanish authorities, R was considered greatly conducive to the interest of the §Tantee that a change of location should be made, and to effect this purpose the defendant was employed, and also to carry the claim through the different officers of the United States government, whose functions relate to the public domain, so as to obtain a patent in form. For his services, * 3 to be rendered in these respects, he was compensated by five hundred acres of the land in question, estimated at the time 0f the transfer of title at the price of five hundred dollars, ‘

It appears by the evidence adduced on the part of the defendant, that he had faithfully and diligently performed ap[ things required of him bv the contract, and that it is more ° L than probable that the change of location which gave so great additional value to the plaintiff’s grant, was effected mainly by the agency of the defendant. We are of opinion that lesion has not been shown, and that the agent and purchaser has always, in relation to the matters now in contest, acted honestly and in good faith.

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


author:
      Bullard, J.,

      Bullard, J.,

text:
    TAYLOR ET AL. vs. JEFFRIES' ESTATE.
    Western Dist.

      October, 1836.
    APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF RAPIDES.
    The term of an administrator is not limited to one year from the date of his appointment. In one class of cases he shall continue to act, until a partition be made among the heirs.
    Administrators stand on a different footing, as to the duration of their trusts, from curators of vacant estates, although the law gives them the same powers, and subjects them to the same duties and responsibilities.
    Where an appeal is taken by a party, not in the record, and his interest is denied, and does not appear by the original proceedings, the case will be remanded, to inquire into the interest of the appellants.
    The plaintiffs have appealed from a final judgment of the Court of Probates, homologating the tableau of distribution of the estate of Richard S. Jeffries, deceased.
    They allege that the administrator and administratrix, filed a tableau of final distribution among the creditors of said estate, without placing them thereon, and procured it to be homologated on the 10th of April, 1835, without giving public notice, in conformity with law.

      They further state, that they are privileged creditors of the deceased, for eight or nine hundred dollars, and that they are aggrieved by .the" judgment, homologating said tableau, anc* pray an appeal therefrom.
    An appeal was granted the 18th of September, 1835, returnable to tbe Supreme Court, at Alexandria, the first Monday of October, following.
    Service of the appeal was made on the attorney in fact, of the administrator, who was temporarily absent.
    Dunbar, for the appellants,
    filed the following assignment of errors:
    1st. That no evidence was offered of the publication of notice of the tableau, notifying the creditors and others, as required by law.
    2d. That the judge of probates erred in homologating said tableau without such evidence; and in fact it could not have been offered or produced, as no publication was ever made.
    On the second day of the October term, 1836, an order was made, on tbe suggestion of the counsel, for the administrator, that this case be laid over for service, or a new administrator to be appointed.

      Winn, for the defendants,
    suggested that the term of the administrator had expired, that he is funtus oficio, and no suit can be carried on against him. The cause should therefore be continued, until a new administration is appointed, or the heirs are cited in.

      Dunbar, for the appellants,
    resisted the motion. These proceedings were commenced during the administrator’s term, and are parts of his acts which he is bound to defend. An administrator is bound to defend suits commenced during his term of office, relative to the estate he administers, and proceed with them to final judgment, even after his term expires. He urged that the order laying over this case be set aside. Louisiana Code, 1669. 3 Martin, N. S., 603.

      The term of an administrator is not limited to one year from the date of his appointment. In one class of cases he shall continue to act until a partition be made among the heirs.
    Administrators stand on a different footing, as to the duration of their trusts, from curators of vacant estates, although the law gives them the same powers and subjects them to the same duties and responsibilities.
    2. In this case the appellants Have no remedy, if the appeal is not sustained. The tableau will be definitively homologated, their claims excluded, and the other debts all . ¶ PctfCl.
    3. The service of citation was properly made on the attorney in fact of the administrator, appointed to represent him during his temporary absence. Louisiana Code, 1144-5.
   Bullard, J.,

delivered the opinion of the court.

Early in the term it was ordered that this case be continued for service, it being suggested that the appellees who were cited as administrators of the estate of Jeffries were fundi offidis. This order was subject to be set aside on a proper showing by the appellants. It appears that the appellees were administrators at the time of service of citation, but it is urged that the years of their administration has since expired, and that they are now without capacity to represent the estate.

The counsel for the appellants has shown that the code makes it the duty of executors, after the expiration of the year of their administration to continue to defend suits brought by or against them until the heir appears. Louisiana Code, article 1669. He contends that the same reason applies to curators and administrators, and that nothing in the code forbids it.

We have examined that part of the code which relates to the appointment, powers and duties of administrators of estates, and we do not find that the term of an administrator is limited to one year from his appointment. On the contrary it is provided, at least in one class of cases, that he shall continue to act until a partition be made among the heirs. Louisiana Code, article 1044. We are of opinion, therefore, that administrators stand on a different footing, as to the duration of their trust, from curators of vacant estates, although the code gives the same powers, and subjects them to the same duties and responsibilities.

Let the order be rescinded.

pea^isteken by th¿ reoordfand dénie'fanti does not appear by the original proceedings, the manded,1 to in-juire into the interest of the appellants.

Winn, for the appellees,

then moved to dismiss this case, because the appellants did not show that they had any interest in the matter embraced by the record.

Dunbar, contra,

contended, that the appellants had set forth in their petition of appeal a sufficient interest, and the case should be remanded, to enable them to show it.

Bullard, J.,

delivered the opinion of the court.

In this case the interest of the appellant is denied, and it not shown by the record. The question thus presented is one which this court cannot try, and the case must be , _ remanded. 6 Martin, Jy. 8., 306.

^ H therefore, ordered and decreed, that the case be remanded to the Court of Probates, with direction to the . ... , , judge to inquire into the claim of the appellant to the appeal.


text:
    FRIEND vs. GRAHAM’S ADMINISTRATOR.
    Western Dist.

      October, 1836.
    APPEAL FROM TIIE COURT OF PROBATES FOR THE PARISH OF CARROLL,
    When an order of appeal is made on the back, or at the foot of the petition, its deficiencies as to description or setting for the court, time and manner of taking the appeal, may be supplied by a reference to the petition.
    When an appeal from the Probate Court is prayed for according to lam, it will be considered as made to the Supreme Court.
    Debts of a succession, like those of the estate of a ceding debtor, are of a higher dignity, and are to be paid before those of the deceased, or of the insolvent.
    The services of an attorney who draws up the petition and schedule of an insolvent debtor, create a claim on the estate surrendered, which is not to be placed on the tableau as a debt of the insolvent. These services enure to the benefit of those who have an interest in the estate surrendered.

      So the services of an attorney, in procuring the removal of an administrator, ensures to the benefit of the succession ;-that is, the creditors and heirs. The claim for services should, therefore, be paid out of tfye funds of the succession, although the attorney was employed at the request of some of the heirs.
    This is an action against the administrator of an estate, for counsel fees. The plaintiff alleges, that as counsellor and attorney at'law, he rendered professional services to the estate, of which the defendant is administrator, for which he charges the sum of five hundred dollars, according to an account annexed. That said administrator refuses to allow his account as a charge upon the estate of the decedent; wherefore he prays judgment for the amount of his claim.
    The defendant pleaded a general denial, and further averred, that if the services mentioned in the petition were performed, it was a personal charge on the persons employing the petitioner, and hot a debt of the deceased, and for which her succession was not liable.
    The evidence showed that the plaintiff had been employed by the heirs of the deceased, against one Tompkins, who claimed to be curator of the decedent’s estate, to have him removed as an unfit person to have the management thereof.
    The plaintiff proved that his services were worth the sum charged. The judge of probates gave judgment against the defendant in his capacity of administrator, for the amount of the plaintiff’s demand. The administrator appealed.

      Winn, for the plaintiff,
    moved to dismiss the appeal, because no appeal is prayed to any court, but is only asked for in due course of law, &c.

      Selby, for defendant,
    stated that an appeal was prayed for and security offered according to law, and that the order granting the appeal made it returnable to Alexandria, the first Monday in October, 1836, which was sufficient, this being the day the Supreme Court meets there.

      When an order of appeal is made on the hack or at the foot of the petition, its deficiencies as to description or setting for the court, time and manner of taking the appeal, may be supplied by a reference to , the petition.
    When an appeal from the Probate Court is prayed for according to law, it will be considered as made to the Supreme Court.
    Debts of a succession, like those of the estate of a ceding debtor, are of a higher dignity and are to be paidbefore those of the deceased,' or of the insolvent.
    The services of an attorney who draws up the petition and schedule of an insolvent debtor create a claim on the estate surrendered, which is not to be placed on the tableau as a debt of the insolvent. These services enure to the benefit of those who have an interest in the estate surrendered.

      2. The attorney was employed by the heirs, and they alone should be chargeable with the fee. It is a debt of theirs and not a debt of the succession.

      Barry, for the plaintiff,
    stated that there was evidence in the record to show that the services, for which compensation is claimed, were rendered, and that the sum charged is very reasonable.
   Martin, J.,

delivered the opinion of the court.

The dismissal of this appeal is prayed for on the ground that it is not expressly made returnable to this or any other court.

• As the order granting the appeal is made at the foot, or on the back of the petition, any deficiency thereon may be eked out by a resort to that document. The appeal was not prayed for expressly to this or any other court, but was asked for according to law. There could not be a stronger implication that it was intended to be to this court, as an appeal could be made to no other. The judge in his order made the “.appeal returnable to Alexandria, the first, Monday of October,” the time and place provided by law for the return of appeals to this court. It is impossible to conclude, from an examination of the petition and order of appeal, that the tribunal to which it was intended to be addressed, could be mistaken. The appeal must, therefore, be sustained.

The plaintiff sought remuneration for professional services rendered the succession, in procuring the removal of a former curator. His claim is resisted on the ground that it is not a debt of the deceased, but of those of the heirs, by whom the plaintiff was employed. Debts of a succession, like those of the estate of a ceding debtor, are of a higher dignity than, and are to be paid before those of the deceased or of the insolvent. In the case of Morel vs. Misotere’s Syndics, & Martin, 363, this court held, that the services of the attorney who had drawn up the petition and schedule of the insolvent, created a claim on the estate surrendered, and was not to be placed on the tableau as a debt of the insolvent, the court being of opinion that the services of the attorney were rendered for, and enured to the benefit of all the creditors who had an interest that the cession should be made, and consequently they were bound to make compensation for the professional services of the attorney, although they were not rendered at their request.

So, the services of an attorney, in procuring the removal of an administrator, enures to the benefit of the succession, that is, the creditors and heirs. The claim for services should therefore be paid out of the funds ofthe succession, although the attorney was employed at the request of some of the heirs.

Claims or debts against a succession, as contradistinguished from those of the deceased, do not entitle the creditor to the curatorship of the succession. Holland vs. Wheaton, 6 Louisiana Reports, 443.

In the present case the removal of the curator enured to the benefit of the succession, i. e. the creditors and heirs, qui sentit commoduni, debet sentiré et onus.

If the succession, after paying the creditors of the deceased, leave nothing for the heirs, the former will be exclusively benefited by the services of the plaintiff. Should there be a surplus for the heirs, then the debts of the succession will be taken therefrom. In either case justice will be done.

The Court of Probates did not err in sustaining the claim of the plaintiff against the succession, although the services were rendered at the request of some of the heirs.

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


text:
    MAYFIELD vs. MORRIS.
    Western Dist.
    October, 1836.
    APPEAL PROM THE COURT OP THE SIXTH JVDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    In a possessory action against a squatter on public land, by another squatter, who had been dispossessed, the jury are authorized to take the lines of the quarter section, including his improvements, as the limits, having no other rule to ascertain and determine the extent of his possession.

      It is true with, regard to a rightful owner, the occupant who claims.by prescription, must establish his limits by positive evidence, and show his possession, inch by inch.
    This is essentially a possessory action. The plaintiff claims the possession of a certain tract of land with her improvements, together with one thousand dollars, in damages for illegally dispossessing her and demolishing her house.
    The defendant pleaded the general issue.
    The evidence showed that both plaintiff and defendant were squatters on public land; and had corómenced their improvements before the land was surveyed. They made a small branch the dividing line between them. When the land was surveyed by the government, it so happened that the plaintiff’s improvements and settlement were in the corner of section No. 31. They consisted of a small cabin, cotton patch, some deadened trees, and rails made adjacent thereto.
    The defendant’s settlement was near the former, but in the corner of section No. 32. From some cause or other a disagreement "took place, and the defendant pulled down the plaintiff’s cabin, dispossessed her, and took possession of her improvements. The plaintiff claims the possession of the quarter section on which her improvements were made.
    There were two trials in the court below. At the first trial the plaintiff had a verdict for one hundred dollars, and the possession of the land. On the second, the jury returned a verdict of fifty dollars and possession. From judgment rendered thereon, the defendant appealed.

      Winn, for the plaintiff,
    submitted the case without argument.

      Dunbar, contra.
    The plaintiff had no right to possession of a quarter section of land, even if she had had any. Both parties were squatters, and can onty claim to possess to the extent of their improvements and actual possession, inch by inch.
   Martin, J.,

delivered the opinion of the court.

, This is a possessory action, in which the plaintiff seeks to be restored to the possession of a quarter section of land, with damages for the ouster. The general issue was pleaded; the plaintiff had a verdict and judgment; and the defendant appealed, after an unsuccessful attempt to obtain a new trial.

In a possessory action against a squatter on public land, by another squatter* ■who has been dispossessed, the jury are authorized to take the lines of the quarter section, including his improvements, as the limits, having no other rule to ascertain and determine the extent of his possession.

It is true, with regard to a rightful owner, the occupant who claims 'by prescription must establish his limits by positive evidence and show his possession, inch by inch.

His counsel 1ms contended in this court, that the recovery was improperly extended to the whole quarter section; there being no evidence of the plaintiff having possessed to any definite extent, except as to the part of the land covered by a house and a small cotton patch.

The evidence shows that rails and timber were cut, .and trees deadened on the premises near the house and cotton patch. This is evidence of possession beyond the house and patch; and if the jury have taken the lines of a quarter section as the limits of her possession, the court is without authority to disregard their verdict, having no other rule by which it could accurately determine the extent of the possession. It is true that, with regard to a rightful owner, the occupant who claims by prescription, must establish his limits by positive evidence, and show his possession inch by inch. But the same strictness cannot be expected from him who has the right of possession, and vindicates it against a trespasser. The extent of possession in the present case was a matter of fact, of which the jury was the peculiar judge. The court was satisfied with the verdict since the motion for a new trial was overruled.

The divisional lines made by the surveyor of the United States afforded the best means of ascertaining and describing the land which' the plaintiff was entitled to recover.

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


text:
    TYSON ET AL vs. LANSING.
    Western Dist.
    October, 1836.
    APPEAL FROM THE COURT OF TIIE SIXTH JUDICIAL DISTRICT, THE JUDGE ' OF THE SEVENTH PRESIDING.
    It is no ground of objection to issuing an attachment, that both plaintiff and defendant reside out of the state, for the oath majr be taken by an agent of the plaintiff, and absence from the stale of the defendant, expressly authorizes an attachment.
    Nor can it be objected to the issuing an attachment before the debt is due, as it is expressly proyidcd for under the act of 1826.
    The plaintiff in an attachment suit, may give a new bond and substitute a new surety, in order to make the first one a witness on the trial, when no liability has accrued under the first bond.
    Where the plaintiff has been improperly deprived of a witness to support the allegations in his petition, and to rebut the testimony of the defendant, the cause will be remanded.
    This is an attachment suit instituted against the defendant, on the following promissory note, before it became due :

      $3700 38. “ New-York, September 10th, 1835.
    “ Twelve months after date, I the subscriber, of Natchito-ches, in the state of Louisiana, promise to pay to the order of Messrs. G. W. Tyson & Co., thirty-seven hundred dollars and thirty-eight cents, at the Commercial Bank, at New-Orleans, for value received.
    “ JAMES LANSING.”
    On the 16th December, 1835, the plaintiffs sued out a writ of attachment against the defendant on the following affidavit, made by Isaac Tyson, a member of the firm of G. W. Tyson & Co.:
    “ That James Lansing is really indebted to the said firm, in the sum of thirty-seven hundred dollars and thirty-eight cents, in the manner set forth in the petition; that said Lansing resides out of this state, and that he is about to remove his property out of the state before said bebt becomes due. “ ISAAC TYSON.”
    The defendant moved to dissolve the attachment on the following grounds:

      First, because by their own showing neither the plaintiff or defendant is a resident of the state of Louisiana, and that the debt is not due, which last allegation, if true, shows that no attachment should issue.

      Second. That the defendant has his domicil in this state, in the parish of St. Martin, where his family reside, and where he has a large property, both real and personal.

      Third. Defendant being domiciliated in the parish of St. Martin, cannot be sued in the parish of Natchitoches.
    On the trial of this motion, the plaintiffs offered one John F. Cortis, the surety in the attachment bond, as a witness to testify in the cause, who was objected to by the defendant’s counsel as interested, and the objection sustained. The plaintiffs’ counsel then tendered a new attachment bond, with a new surety, releasing Cortis, to make him a competent witness, all of which was objected to by the defendant’s counsel, and the objections sustained, and the opinion of the court excepted to.
    The evidence showed that the defendant was a merchant, and had a store at St. Augustine, in Texas, but was in the habit of going backwards and forwards to his family in the parish of St. Martin ; that he had valuable real estate there, and where his family continued to reside.
    Judgment was rendered, dissolving the attachment, and the plaintiffs appealed.

      Winn and Spaulding, for the plaintiffs.
    1. The note sued on in this case expresses on its face that the defendant is a resident of Natchitoches, and the evidence shows he is about removing his goods to a store he has actually established in Texas.

      2. The testimony of Cortis should have been received, and would have showed that the defendant was about removing permanently from the state, to Texas. This witness was1 rejected as interested, because he was the surety in the attachment bond, when it was moved and offered to substitute another surety in his place. We had a right to do this. 6 Martin, JV. S., 673.

      Dunbar, for the defendant,
    contended that the witness was properly rejected, and could not be released from his liability under the bond. This liability accrued from the time of signing the attachment bond. See the case referred to in 6 Martin, JV. S., 673.

      2. The attachment-improperly issued in the first place, because' the defendant is a resident of the state, and it is shown has valuable ‘ property in the parish where he is domiciled. 5 Martin, JV*. S., 450. 3 Louisiana Reports, 125.

      Spaulding, in reply,
    maintained that the case cited from 6 Martin, N. S., 673, was conclusive as to the right of using Cortis as a witness. His testimony being rejected, the case must at any rate be remanded.
   Martin, J.,

delivered the opinion of the court.

.The plaintiffs are appellants from a judgment setting aside an attachment, which they had obtained against the defendant, whom they allege resides out of the state, and who intended to remove his property out of the same, before the maturity of a note which he had given to them.

The defendant moved to have the attachment set aside, on the following grounds :

First. The affidavit shows that neither of the parties is a resident of the state, and that the debt is not due.

Second. That the defendant is domiciliated in the parish of St. Martin, in this state, and has valuable real property therein.

Third. And that he is not suable in any other parish than that of his domicil. ,

It is no ground °sfsu°ngeetann at-defendant reside fortife oath may taken by ari agent of the piaimiff, and ab-statedo/tííe dely'^nhorSeTan attachment,

oty^Tto^the issuing an attachment before the debt is due, prjyjdee¿?or under the act of

The plaintiff in an attachment suit, may give a new bond and substitute a new surety, in order to make the first one a witness on the trial, when no liability has accrued under the fiwst bond.

The act of 1826 provides, that when- the debt is not due, an attachment may issue on the affidavit of the creditor, of the existence of the debt, and of either of the circumstances mentioned in the first, second and third numbers of the article 240, of the Code of Practice.

The first circumstance is, that the debtor is about permanently to leave the state, or has left it, never again to return, without the possibility of obtaining or executing a judgment against him ; the second is, that he resides out of the state; and the third is, that he conceals himself to avoid being cited and forced to answer to the suit intended to be ° brought against him.

I. It is clear that.it is no good ground of objection, that both parties reside out of the state, for the law expressly provides that the oath may be made by an agent when the plaintiff is absent, arid the residence of the defendant out of the state, is stated as a circumstance authorizing an attach- , , 7 y. _ . , , 7. • ¶ ment to issue. Code oj Practice, article 244. Neither can it be objected under the act of 1826, that the debt is not yet due.

II. The testimony shows that the defendant was at St. Augustine, in Texas, and had a store there about the time of issuing the attachment, and that he had a family residing at Newtown, in the parish of St. Martin ; also a house and lot, and slaves, together with other property there, and in other parts of the state. The plaintiff asked leave to substitute another bond for that on which he 'had obtained the attachment, with the view to render the surety in the first bond a competent witness for him. This was objected to on the ground that a liability might have already accrued, and the surety could not be relieved from it without the consent of the defendant. The objection was sustained, and the plaintiff’s counsel took his bill of exceptions.

It appears to us the District Court erred. It has been the practice of this court to allow the substitution of a new bond, when one of the obligors is wanted as a witness. This has, however, never been done when a liability had already accrued. If this was shown to be the case in the present instance, it would be proper to consider whether this circumstance ought to prevent the substitution. But it is not shown, nor is it urged, that any liability has accrued.

Where the plaintiffhas been improperly deprived of a witness to support the allegations in his petition and to rebut the testimony of the defendant, the cause -will be remanded.

As the plaintiffhas been improperly prevented from availing himself of the testimony of his bondman, in order to support the allegations of his petition, and to rebut the testimony offered by the defendant, in support of the second ground of his motion to set aside the attachment, it is our duty to afford him the opportunity of doing so.

III. The conclusion to which we have come on the second, renders it unnecessary to examine the third ground, upon which the motion to set aside the attachment is founded.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed, and the case remanded, with directions to the district judge to allow the plaintiffs to substitute a new'bond for the former one; the appellee paying the costs of the appeal.


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    LOWERY ET AL. vs. LANSING.
    West™ Dist.
    October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    An attachment may issue when both plaintiff and defendant reside out of the state, and even before the debt becomes due.
    A new surety in an attachment bond may be substituted, and the first one made a witness for the plaintiff, if no liability has already accrued on the bond at the trial.
    This is an attachment suit by the plaintiffs, who reside in New-York, ■ against the defendant, who styles himself “of Natchitoches, Louisiana,” in the. note sued on. The attachment issued before the note became due, on the affidavit of one of the plaintiffs, that ’ the defendant had removed to Texas, and was about to remove his property there.
    An attachment may issue when "both plaintiff and defendant reside out of the state, and even before the debt •- becomes due.
    A new surety-in an attachment may be substituted, and the first one made a witness for the plaintiff, if no liability has already accrued on the bond at the trial*
    ' On motion by defendant to dissolve the attachment, the plaintiff offered to substitute a new surety in the attachment bond, in order to make the first one a witness, which was opposed, and the opposition sustained.
    There was judgment dissolving the attachment, and the plaintiff appealed.

      Winn and Spaulding for the plaintiffs.

      Dunbar, contra.

   Martin, J.,

delivered the opinion of the court.

This case does not differ in any material part from that of Tyson et al. vs. the same defendant, which has just been decided, vide ante, 445. The same judgment must be rendered in this case, as was given in that one.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded with directions to the district judge, to allow the plaintiffs to substitute a new bond for the former one. The defendant and appellee paying the costs of the appeal.


text:
    KELSO vs. BEAMAN.
    Western Dist.

      October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    A purchaser at public sale of a right or debt alleged to be due by another, becomes the assignee of him who was the supposed creditor and owner of the claim; and he cannot exercise the rights thus acquired in any manner than the supposed creditor or assignor could have done.
    As assignee, a party cannot avail himself of any fraud or collusion between the assignor and the debtor, against whom he seeks to enforce his claim.
    This is an action to recover the amount of a debt due by the defendant, to one Gilbert C. Russell, which the plaintiff purchased at sheriff’s sale.
    The principal facts were reported when the case was formerly before this court. See 6 Louisiana Reports, 87.
    In August, 1828, one J. W. Wing, as agent of Russell, mortgaged certain slaves and a plantation, belonging to the latter, to C. Beaman, ostensibly to secure seven thousand eight hundred and ninety dollars, but which in fact, according to a settlement between the parties in January, 1829, only amounted to three thousand five hundred and forty-two dollars, for which the mortgage was recognized and ratified by Russell himself.
    In October, 1829, Russell being in embarrassed and insolvent circumstances, several judgment creditors of his levied executions on the mortgaged property in Beaman’s hands, and sold all Russell’s interest therein, and.which was purchased in by Beaman for nine thousand eight hundred and ninety dollars, being two thousand dollars more than the nominal amount of his mortgage. At this sale the parish judge’s certificate was read, setting forth Beaman’s mortgage for the entire nominal amount, for which it had been given originally, to wit: the sum of seven thousand eight hundred and ninety dollars, and that the purchaser must bid over and above this sum, before the mortgaged premises could be sold.

      The plaintiff further alleges that Beaman became justly indebted to Russell, for whatever amount the nominal mortgage of seven thousand nine hundred and eighty dollars exceeded the sum originally due from Russel, to wit: the sum of four thousand three hundred and forty-eight dollars.
    He further shows that he being also a judgment creditor of G. C. Russell, he levied his execution on this debt in Beaman’s hands, and on the 25th February, 1834, the whole together, with all G. C. Russell’s right, title and interest was adjudicated to him, the petitioner, of all which proceedings Beaman had due notice. He further alleges, that Beaman is now indebted to him for the sum of five thousand dollars, including the above debt, interest and costs; but that there has been fraud and collusion between the said Russell and Beaman, for the purpose of defeating the just creditors of the former, and by reason of this Beaman is indebted to him for said sum. He prays judgment for the amount of his said demand.
    The defendant pleaded the general issue, and denied specially that he was or is now indebted to G. C. Russell, in any manner whatever. He further avers that the questions involved in this suit, between the same parties, have been finally decided in favor of the defendant, wherefore he pleads res judicata; and finally in this court the prescription of one year.
    The evidence showed that at the timé Beaman purchased the property in at sheriff’s sale, Russell was then, and previously, insolvent. Beaman was an overseer on Judge Johnston’s plantation, and in moderate circumstances. That he continues to hold the negroes purchased in by him, except those that died, to the number of about twenty.
    Thomas, a witness for plaintiff states that he had executions against Russel, and told Beaman he must bid the amount of them, or he, witness, would bid in the property, if he would not agree to pay them off. That Beaman was aware of the amount that witness had in his hands against the property, and the conveyance he had of the slaves from Russell, and also the possession and counter letter witness bad given Russell. That Beaman gave his twelve months’ bond for the amount of the sale of the slaves, over and above the amount of his mortgage, and paid witness about one thousand two hundred dollars over that. Witness says he would not have given the amount of Beaman’s nominal mortgage for the property, subject to certain suits vs. Russell, called the Montgomery claims. That he expects as attorney of Montgomery, to recover a large amount; and that he considers Beaman had a hard bargain, &c.
    . The district judge gave judgment for the defendant, from which the plaintiff appealed.

      Dunbar, for the plaintiff.

      Thomas, contra.

   Martin, J.,

delivered the opinion of the court.

The facts of this case are briefly these. In 1828, G. C. Russell mortgaged to the defendant, a plantation and slaves for the sum of seven thousand eight hundred and ninety dollars.

In the month of October, 1829, the mortgaged premises were seized and sold, at the instance of several judgment creditors of Russell, and was purchased in by the defendant Beaman, for the sum of two thousand dollars, above the amount of his mortgage.

Afterwards, to wit: on the 23d of October, 1829, Russell and Beaman entered into a written agreement, in which they declare and stipulate, “ that if the said G. C. Russell shall pay to him (Beaman,) the said sum of two thousand dollars, and also the sum of three thousand five hundred and forty-two dollars, being the true balance, in fact, due on the above mortgage, as appears by an instrument filed in the office of the parish judge of Rapides,.dated the 17th January, 1829, or such an amount as may be fixed on under a reservation in said instrument; as well as all such costs and charges, and interest, as may be justly due thereon; and also such sum as he (Beaman) may be bound to pay on the final decision of a suit now pending in favor of Elijah Montgomery against said Russell, on account of said property, and all costs, interest arid charges he may be at in defending said suit; also, whatever sum he may pay on account of judgments or liens on said property; then, and in that case, he (Beaman) obligates himself to re-convey said property to the said Russell, provided the said payments be made on or before the first of January, 1831.”

.. , - the assignee of supposed"cred¡-íí¡ea ciaim^and h.e cannot exer-cisc the richts thus acquired in nerthanTiie^upI P°set\ «^editor or assignor could have done. A purchaser at public sale of a right or debt alleged to due > an°-

“And it is moreover understood, that the purchase of the said property was made at the instance and request of the said Russell, and that he (Russell) renounces any claim he might have against the said Beaman on account of the difference between the price of the aforesaid negroes and the aforesaid sum of three thousand five hundred and forty-two dollars, fixed on as before stated, as the true sum due the said Beaman on the aforesaid mortgage.”

In February* 1834, the plaintiff purchased, at a sheriff’s sale “ the whole debt due by Beaman to Russell, and all the right,' title and interest which the said Russell might have in and to any species of property in the hands of said Beaman, either real or personal, rights or credits, or any balance which might be due from the said Beaman to the said Russell.”

The present action is brought to recover the sum of five thousand dollars, which is alleged to be due to the plaintiff on account of his purchase. There is also an allegation, that there has been fraud and collusion between the said Russell and Beaman, for the purpose of defeating the just creditors of the former.

The defendant pleaded the general issue. judgment in his favor, and the plaintiff appealed. There was

The appellant stands before us as the assignee of Russell’s rights, and cannot exercise them in any other manner than Russell could before the assignment. These rights result o o from the instrument bearing date the 23d October, 1829. We have looked there in vain for any clause that might authorize in Russell an absolute demand of five thousand dollars, or any other sum. He might indeed, under that instrument, on a payment or tender of certain sums of money, and on showing the release of the defendant from the responsibilities which he had incurred for Russell, have demanded a reconveyance of the mortgaged premises, and an account of the revenues produced by them. This he has not done. And it is even doubtful whether it could have been done after the expiration of the time limited in the instrument.

As assignee, a avaií himseiTof íuíion^bebreen the assignor and gainst -whom he his ciaim?nt'°rCe

As assignee of Russell, the plaintiff could not have availed ^lmse^ °f any fraud or collusion between the former and the defendant. If this fraud gave any action to the creditors of the former, it was, perhaps, restricted to a demand of the rescission of the sale under which the defendant had acquired the mortgaged property. This right could only have been exercised by instituting suit within the year.

In relation to the charge of fraud and collusion, we are without any evidence except that which is presented to us in the transaction, of which the instrument, dated the 23d of October, 1829, is the evidence. We are not ready to say that any fraud or collusion is shown, or results therefrom.

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