author: Martin, J.

text:
    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING.
    DECOUX’S HEIRS vs. PLANTEVIGNES.
    Bastean Dist.
    February, 1837.
    An appeal will not be dismissed, because transcript is not filed on .the return day, if it be filed before the motion to dismiss.
    The appellant has a delay of three judicial days after the, return day, within which to file the transcript, or obtain a prolongation of time, person employed in the settlement of a succession, will be allowed to introduce evidence in support of a commission charged by him, to show that it is usually allowed in such cases, because he might show he was within the knowledge of his employers, a person frequently engaged in' such business, and that his charges were such as were usually allowed to persons in-similar circumstances.
    A procuration, or mandate, is gratuitous, unless there has been a contrary stipulation. This need not be express, it may be implied.
    The receipt of the heirs for a balance, is evidence of an account rendered, and a settlement made. It is evidence of the allowance of every charge made in the account, even the commissions retained.
    The commission charged for the settlement of a succession, may be allowed in lieu of a compensation usually stipulated for, and paid for such service. The tutor may allow this commission on the property of his ward.
    If the heirs respectively received the sums due them, from the person entrusted with the settlement of their ancestor’s succession, on an account rendered, the balance retained by him, will be presumed to be on account of his commissions, and as if they were actually paid to him.
    The plaintiffs allege, that they are the heirs and legal representatives of the widow Pierre Decoux, the nett amount of whose succession, after it had been partially administered by a testamentary executor,,amounted to twenty-two thousand one hundred and nineteen dollars. That said executor had proceeded to sell the property of said succession on a credit, and was discharged after being allowed his full commissions.

      They farther show, that they appoioted the defendant by notarial act, their mandatory, or attorney in fact, to take charge of said succession, to collect the debts for the property sold, and to settle its affairs, and that he accepted the procuration.
    They further allege, that the defendant has failed, and refused to render a final account of his trust, but, he retains a balance in his hands of one thousand one hundred and six dollars, as his commission on the whole amount of'the succession, at the rate of five per cent. They allege, the pro-curation which was conferred on him and accepted, was entirely gratuitous. They pray that he be compelled to render an account and pay over this balance.
    The defendant admitted his appointment to collect the debts of the succession, and to pay off such as were owing; to settle with the heirs and pay over each one his portion, and that he retained for his'commission and trouble five per cent, -on the amount which came into his hands ; that the plaintiffs sanctioned and approved his acts, by giving receipts and acquittances for the portion of each ; that his services were fully worth that amount retained, and which is the usual allowance in such cases. Upon these pleadings and issues the parties went to trial.
    The defendant offered witnesses who had been employed in the parish to settle successions in this way, to prove that his charge of five per cent, commission was usual and customary for such services. The testimony was objected to, on the ground, that the power of attorney, under which the defendant acted, did not contain any stipulation for compensation, but that the procuration was, under the Code, a gratuitous one, &c. The court sustained the objections, and a bill of exceptions was taken.
    The plaintiffs had judgment for the sum claimed, and the defendant appealed.

      F. N. Ogden, for the plaintiffs,
    filed a motion on the 11th of January, to dismiss the appeal, because it was made returnable by consent to the first Monday (2d day) of January, and the transcript was not filed until the 5th of the same month.
    2. He urged the affirmance of the judgment, because the procuration under which the defendant acted was gratuitous, and having been accepted, he could not charge a commission, or in‘any other way demand remuneration, Louisiana Code, 2960.
    3. The receipts of the plaintiffs only go to show the hereditary portion each one received, and do not authorize the inference, that they intended to allow a commission. It was incumbent on the defendant, to have shown a special agreement to that effect. Pothier, Traité des Obligations, 476, JVb. 784.
    4. If the receipts by the tutor of the minor heirs, showed an agreement to allow a commission, it would amount to a donation, which the tutor had no right to make. Louisiana Code, 345.
    5. The minor heirs have a right either to proceed against their tutor, or directly against the person who has obtained an unjust advantage over them. 5 Martin, N. S., 655. 9 Martin, 490.

      Servant and SouU, contra.

    1. The defendant in this case, had a right to prove that it is customary for agents, in the parish of Point Coupee, to charge five per cent, to their principals; and the bill of exception to refusal of the judge to allow said proof, was well taken, because the obligations of contracts extend not only to what is expressly stipulated, but also to every thing that by law, equity, or custom, is considered as incidental to the particular contract. Louisiana Code, article 1897.
    2. The receipts given by plaintiffs, are in the nature of a settlement of accounts ; they approved, tacitly his charge, by giving receipts for their portions ;' and a settlement thus agreed to, (soldé de compte,) cannot afterwards be objected to. Louisiana Reports, 544.
    3. By remaining silent so long, (from-1825 to 1836,) the approval of the acts of Plantevignes, (that of retaining a commission being one of them,) by plaintiffs, may fairly be presumed. 7 Martin, JV. S., 143.
    An appeal win not be dismissed, because the transcript is not turn day, tfk’te filed before the motion to dismiss.
    The appellant three*1 judicial tam day1 within which to file the tainTproiongation of time.
    4. Though the contract of mandate contai ns no st.i pulation for salary, it may, in some cases, be declared not gratuitous, according to circumstances, the custom and the profession of the mandatary. 18 Duranton, Mo. 197. Sirey, 32, 1, 621.
   Martin, J.

delivered the opinion of tbe court.

Tbe defendant is appellant from a judgment, which condemns him to pay to the plaintiffs a sum of money, which he retained on a settlement with them, of the succession of their ancestor, which had been entrusted to him. The plaintiffs, appellees, contend the appeal ought to be dismissed, because it was made returnable by consent, on the first Monday of January, which was the second day of the month, and the transcript, was not filed until the 5th of January. In the case of Traverso et al. vs. Row et al. ante 500, which we have .lust decided, we held that the appellee cannot claim a dismissal of an appeal, on the ground of the transcript not ... , , , , , , , „ having been filed on the return day, unless he does so before it be actually filed.

This is a stronger case. The transcript was brought up on the third day after that on which the appeal was returnable. The appellee, therefore, was not entitled to demand from tbe clerk the certificate, on the production of which, execution could have issued from the Inferior Court. Code °f Practice, 589. Neither could he have demanded the dismissal of the appeal, because article 883 gave the whole of the day upon which the transcript was filed, to the appellant, in order to obtain from this court a prolongation of ,. time.

In the case of Ross vs. St. Francis’ Church, we held that the transcript need not be filed on the return day, if it be not a judicial day, and that the delay of three days, is of three judicial days. This court did not sit on the 2d of January, nor on any of the three following days. The appeal, therefore, cannot be dismissed.

A person employed in the settlement of a succession, will be allowed to introduce evidence in support of a commission charged by him, to show that it is usually allowed in such cases, because he might show he was, within the knowledge of his employers, a person frequent-Iy engaged in such business, changes were usually Allowed to persons in similar circuía-stances.

On the merits, the counsel for the appellees bas urged,

1st. That the power of attorney, under which the defendant acted, was a gratuitous one, and having accepted it, he could not pretend to a remuneration. Louisiana Code, 2960.

2d. The receipts offered by him, to show that the tutors of the minor heirs had agreed to pay him a commission, do not go to that extent. They receipted for the hereditary portion of the heirs alone, and it was incumbent on the agent to show specially, an agreement on their part, to pay him a commission. Potkier, Traite des Obligations, vol. 1, page 460, article 784.

3d. If the receipts are evidence of an agreement to allow a commission, they are so of a donation of the minors’ property, which the law prohibits. Civil Code, 347.

4lh. A minor injured by the act of his tutor, has a remedy against him, and also against the person, he illegally availing himself of such an act. Leonard’s tutor vs. Mandeville. 9 Martin, 490-8. Butler vs. His Creditors, 5 Martin, N. S., 655.

The defendant’s and appellant’s counsel has drawn our attention to a bill of exceptions, to the opinion of the court, refusing him leave to introduce evidence of a charge of commission, as that made by him being usually allowed in the parish, to persons undertaking the settlement of successions.

2d. He has urged that the receipts of the heirs, for the balances coming to them respectively, is evidence of a settlement of account, in which the charge for commission was made and allowed.

3d. The silence of the plaintiff, (from 1825 to 1836,) is a corroborating circumstance, from which a strong presumption arises, that the commission was, on a settlement of account, thought to be due. 7 Martin, JY. S., 143.

4th. The contract made, is from its nature gratuitous, but not essentially so. A compensation may be legally stipulated, expressly or impliedly. 18 Duranton, No. 197. Sirey, 32, 1, 621.

orAmnndateti<is gratniious, unless there has been a contrary neeínot^eex-press, it may be imphed.

The receipt of baiai!cerSisf0evi-dence of an ac- and a settlement dente ofS the allowance of ev«ry charge made m the commissions retained.

The commission charged for atuccessionmay be allowed in pensation usual-anípaidfbrsucií tutorniay ¡Mow this commission

If the heirs respectively received the sums due them from the person en-setaement!h ‘of their' ancestor’s succession, on an account rendered, the balance retained by him, will be presumed to be on account of his commissions, and as if they ■were . actually paid to him.

It appears to us, that the evidence offered by the defendant and appellant, ought to be received. It was useful to him, after having shown that persons engaging in the settlement of successions charged, and were allowed, a commission therefor, he might have shown that be was in the knowledge 0f j^jg employers,-a person usually engaged in such settler J 7 1 J do ment, and that his charges were not greater than those niade by, and allowed to, persons in similar -circumstances; aQd tbence have contended, that the persons who employed him, knew that he expected a compensation, and presented in „ ,- . ., the allowance of the commission, as an evidence or an implied promise to pay it.

The first proposition of the appellee’s counsel, has been correctly answered by the fourth of the appellant’s, that the procuration is gratuitous, unless there have been á contrary agreement. Louisiana Code, 2960. This contrary agree- & , J o ment need not be express, it may be implied.

2d. The receipt of the heirs for a balance, is evidence of an account rendered, and a settlement made. It is evidence of the allowance of every charge made in such account. The plaintiffs do not contend, that the defendant neglected to charge himself with any thing with which he was chargable. ° _ , i ° only, claim the amount of the commission he has retained, on paying the balance in his hands, on the rendition.of an account, in which this commission was necessarily * . J charged, as ordering pro tanto the balance he owed.

3d. As the defendant, when he was requested by the tutors of the plaintiffs, to undertake the settlement of the succession of their ancestor, might have stipulated for the compensation usually allowed for such a service, without vi°^at'ng the article of the Code cited, it follows that- the tutors, in agreeing to pay that' compensation, made no donation to him, but promised a quid pro quo, a fair compensation. 4

4th. The tutor in doing so, did no iniury to his minor. J

TT , , , , , . Upon the whole, it appears to us, that all the plaintiffs ^avin§ left> wben tbey received their respective shares of the succession of their ancestor, a sum in his hands, which is admitted to be no more than the commission, which he claims as a compensation for his services, and all of them but one, having acknowledged that the sum by them respectively received, was the balance of an account rendered by the defendant, in Which this charge is admitted to have been made, since it is now claimed as having been then retained, it'follows that they are in the same situation as they would be if the commission had been actually paid; had it been, the payment would be a very strong presumption that the plaintiffs considered the defendant entitled thereto.

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


source: Caselaw Access Project

author: Bullard, J.,

license: Public Domain

text:
    RELF, SYDIC, &c. vs. IVES.
    EASTERN DlST.
    February, 1837.
    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING.
    Where the principal instructs his agent and attorney at law, intrusted with the enforcement of an execution against certain property, to let the sale take place without any interference on his (principal’s) part, and the attorney bids it in on his own account, for a sum less than the debt, he is not liable for any loss sustained by the principal, or for a violation of his trust.
    This is an action instituted by Richard Relf, sole syndic of Kenner & Co., against Thomas E. Ives, counsellor and attorney at law, to render him liable, and have a sale to him rescinded, of certain property mortgaged to Kenner & Co., which he bid in on his private account, whilst, as is alleged, he was acting as the plaintiff’s agent and attorney at law.
    The defendant pleaded a general denial, and averred that his authority to bid for the plaintiffs, had been revoked by letter, and that he was at liberty to act for himself. He sets out specially the circumstances and facts under which the transaction took place.
    The pleadings and evidence of the case are stated in detail, in the opinion of judge Bullard.
    The defendant had judgment, from which the plaintiff appealed.

      Ives, in propria person&, argued the case ex parte for the appellee.
   Bullard, J.,

delivered the opinion of the court.

The plaintiff, as sole syndic of the creditors of Kenner & Co., represents in his petition, that the defendant was employed as attorney and counsellor at law, to sue for, and recover a debt due to that estate, which was secured by mortgage on a tract of land in the parish of Iberville, which had passed into the hands of third persons; that he obtained a final judgment, but was restricted in the execution of it to the seizure and sale of the mortgaged premises, the original debtors having become insolvent, and that the land was seized and offered for sale, but not bringing two thirds of its appraised value, which was twelve thousand dollars, was advertised a second time for sale at twelve months credit, when it was purchased by the defendant for two thousand dollars, who gave a twelve months’ bond. The plaintiff alleges that the defendant, after the rendition of the judgment, continued to act as the counsel of the syndics, and by letter asked from them an authority to purchase the land on their account, and that in reply, the plaintiff, as one of the syndics, did authorize him to bid for them to the amount of seven.r:thQUsand five hundred dollars. He alleges that the clef enfant, did;, Jake upon himself that agency, and stated to several persons,'before the day fixed for the sale, that the land would not be sold for less than seven thousand fivehun-dred dollars, and that accordingly, be bid that amount for them; but it not being two thirds of the appraisement no sale took phace. He further alleges, that when the land was advertised for sale on a credit of twelve months, the defendant wrote to him to be informed, what amount he would authorize to be bid, stating at the same time, that he believed, the property would sell for a sufficient amount to pay the judgment and costs, and that Mr. Ives was informed in reply, that the syndics would not make any bid for the property, which course they the more readily adopted, as it was the defendants opinion that the property would sell for enough to pay the judgment. ■ He further avers, that the defendant failed to inform the persons to whom he had communicated his former authority, to bid for the land, that it had been withdrawn; but well knowing that the syndics confided in him, as their attorney and agent, to attend the sale, in violation of the trust and confidence reposed in him, he himself became the purchaser, when no other bidders were present, although it was in his power to have the sale postponed, which took place on the land itself, instead of being in the town of Plaquemine, where the first, exposure had taken place. The petition concludes with a prayer, that the sale of the land may be rescinded, and that it be sold at twelve months’ credit, for the benefit of the creditors of Kenner & Co., or that the defendant be adjudged to pay in damages, the sum of nine thousand dollars, the value of the land.

The defendant, in, his answer, admits that he purchased the tract of land on his own account; and-he denies that he was, at the time of the sale, either the attorney at law or the agent of the syndics of Kenner & Co., or that he had any authority or power to bid for them, or to bind or obligate them by any bid which he might have made on their account; that on the contrary, he was instructed to let J,he sale proceed, without any interference on syndics. He further avers, that after he instructions, he wrote to the syndics, infiÉ he feared the property would be sacrificed, unless they authorized him to bid for them, and urging them to give him authority, and that real property was much depreciated in value, but that he received no authorization.

The trial in the court below, resulted in a judgment in favor of the defendant, from which the plaintiff has appealed. But neither he, nor his numerous counsel, who figure in the record, have thought proper to favor this court with any arguments, either oral or written, or any reference to legal authorities, upon which they rely for a reversal of the judgment.

The evidence in the record shows, that the defendant, as the attorney at law of the syndics, obtained a final judgment 'against Adams, and that the land in question was seized to satisfy that judgment. It was first exposed for sale on the 8th of December, 1834. On that occasion the defendant, under the express authority of the syndics, bid seven thousand five hundred dollars, but the appraisement amounting to twelve thousand dollars, no sale took place; and it was advertised again for sale on the 26th of the same month, at twelve months’ credit. On the day previous to the first exposure, Mr. Ives wrote to the plaintiff, that there would be no sale, as no one would push the property to his limit of seven thousand five hundred dollars, and that of course the property would be re-advertised for sale in about fifteen days. “ In the meantime,” he adds, “ Mr. Saul will doubtless arrive, and join you in a letter to me of instructions as to the sale under twelve months’ bond. Of course, no bond will be required, if you, as plaintiffs and syndics, become the purchasers. I do not know what the property will bring at twelve months. That species of property is at present much depreciated. It ought, however, to bring the amount of the judgment and costs, and it would be a great sacrifice to sell it lower.” Again, on the 9th of December, the day after the first exposure, he wrote to - the plaintiff, informing him that no sale had been effected, and that the land was to be offered again on the 26th of the same month. In that letter he says, “Please address me an authority to bid to the amount of judgment and costs, or to such amount as you shall see proper. Mr. Saul will no doubt arrive in time to concur with you in the act. It may be by simple letter. Please address me at Donaldsonville, by mail. The sale is to be made on the land. I hope to be able to sell it for amount of debt and costs.” On the 20th, the plaintiff : wrote to Mr. Ives, acknowledging the receipt of his letter of the 7th, which he bad communicated to Mr. Saul, at whose suggestion they had consulted their counsel, Mr. Eustis, who thought it doubtful whether they, (the syndics) in case of their purchasing in the land, and any lossshould be experienced in a subsequent sale by them, would not make themselves responsible, personally. “ Under this advice,” he continued, “ we have concluded to let the sale take place, without any interference on our part, to which determination we have come, more readily, from the hope you lead us to entertain, that the property will sell for the amount of the debt and costs.”

pri^paie structs his agent law, ^'StrSted ntofTnexe^ 0UtiQn against certain property, to let the sale ou^anyTnterfer-,eiJ0.e . °,n , his (principal’s) part, and the at-on'hís'^t-nac-' p?susn\]°ana debt, he is not loss sustafeedby for avSionof his trust.

At the date of this letter, the plaintiff was informed that the sale was to take place on tfcm land, and not in town, of which he now complains; that property of that kind was greatly depreciated in value, and that it was doubtful how much it would bring, though the defendant hoped it might be sold for enough to satisfy the judgment, a hope evidently coupled with a confident expectation that he would still be authorized to appear as a bidder at the sale for-the syndics ; and yet, all authority, all control over the sale, all discretion, was revoked, and the determination of the syndics distinctly announced that the sale should take place without any . , . T ... . . interference on their part. In coming to this resolution, they had been influenced, not by the suggestions of the defendant, but, contrary to his reiterated solicitations, by the , , J advice of other counsel, and from an apprehension that they might make themselves ultimately responsible to the ere-di tors. It appears to us, as it did to the court below, that after receiving this letter the defendant was released from all professional responsibility to the plaintiff, and that he could not have interfered without incurring personal liability. All authority whatever was expressly withdrawn. Throughout tbe whole business the defendant appearsto us, to have acted with strict regard to his professional duties, and with even an anxious solicitude for the interests of the plaintiff. It C0UM not' fairly be expected that the defendant should incur any personal liability, by assuming to act for the syndics contrary to their instructions, when the syndics had given those very instructions, in order to avoid such responsibility themselves.

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


author: Martin, J.,

text:
    BELL vs. WILLIAMS'S ADMINISTRATOR.
    Eastern Dist.

      February, 1837.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    If the record does not contain the proceedings of the Supreme Court, had on a previous appeal when the case was remanded, the appeal need not be dismissed, as these proceedings can be read from the minutes of the court.
    When a cause is remanded for new proceedings, the plaintiff cannot have .the note sued on, protested, to show evidence of a demand which did not. previously exist, and amend his petition so as to avail himself of this circumstance.
    No cause of action, accruing after the inception of the suit, can be set out in an amendment of the pleadings.-
    This is an action on a promissory note for one thousand five hundred dollars, executed by James Williams, deceased. The suit was instituted in 1829, in his lifetime. ' A demand and failure to pay is alleged, and judgment prayed for the amount due on the note.

      The defendant denied his liability under the note, because it was given to take up a certain draft, which, in fact, had been settled.
    In 1832 this case was remanded from the Supreme Court, for a new trial. 3 Louisiana Reports, 447. After its return, the plaintiff had the note sued on, protested, in order to show a demand, and presented an amended petition to avail himself of this circumstance on the second trial. This was objected to by the adverse counsel, as changing the substance of the demand, but the amendment was admitted by the court, and a bill of exceptions taken to its opinion.
    The case was finally submitted to a jury, under instructions from the court, who returned a verdict for the plaintiff. Froni judgment rendered thereon the defendant appealed.

      Randall and Bradford, for the plaintiff.
    1. It appears from the record, that all the documents and papers in the court below, and none of the proceedings had, or opinion of the Supreme Court on a former appeal, remanding said suit for further proceedings, have been sent up to this court, and that, therefore, the present appeal must be dismissed.
    2. That there is no error in the judgment (or opinion of the court below, and that said judgment ought to be affirmed.
    3. That ten per cent, damages ought to be allowed the ap-pellees, on account of the loss they have suffered, by reason of this frivolous appeal, and the delay consequent thereupon.

      Boyle and Johnson, contra.

   Martin, J.,

delivered the opinion of the court.

The appellee prays the dismissal of the appeal, on the ground “ that all the records in the court below, and none of the proceedings had, or opinion of the Supreme Court on a former appeal, remanding said suit for further proceedings, have been sent up to this court,” &c.

does not contain the proceedings Court, had'on a wheñ°thePPcasé the appratnneed notbedismissed, ings^aifbcTread ofXifcourt™168

When a cause new proceed-tóot'lr; the note su'ed on protested, to show evidence which did™ not previously exist, and amend his petition, so as to this'1 k'”irc-am-stance..

No cause of action, accruing tion o? diesmC can be set out in an amendment of the pleadings,

The clerk’s certificate attests, that the transcript contains a COpy 0f aj¡ proceedings had in the case. There is’ a statement of facts agreed on by the parties. It is true the transcript contains no copy of the proceedings of this court on a fonrjer appeap If recourse is to be had to these proceedings, they may be read from our minutes. The appeal, therefore, ought not to be dismissed.

On the return of this case to the District Court, the plaintiff being without evidence of a demand at the place designated in the note, procured it to be protested, and obtained leave to file an amended petition, stating the demand and protest made, since the return of the record to the Dis-tr*ct Court. The filing of this amended petition was objected to, on the ground that it altered the substance of the demand; by making it different from the one originally brought. Code of Practice, 419. The objection was overruled,’and a bill 0f exceptions taken, 1

It appears to us that the District Court erred. The suit was brought on a cause of action necessarily stated, to have occurred before the inception of the suit. The amended , . . . • petition states a cause, originating since the return of the record from this to the District Court.

On the merits the plaintiff has not made out his case.

It is, therefore, ordered, adjudged and decreed, that the -mfigmjent of the District Court be annulled, avoided and J ° . 7 reversed, and that there be judgment for the defendant, as in case of a non-suit, with costs in both courts.


text:
    M'MILLEN vs. GIBSON ET AL.
    Eastehn Dist.

      February, 1837.
    APPEAL PROM THE PARISH COURT POR THE TARISH AND CITY OP NEW-ORLEANS.
    An intervention is, according to the Code of Practice, a separate demi and consequently, the trial between the original parties can be properly gone into without it, or waiting for it.
    Where a motion to dissolve an injunction is overruled before a trial on the merits, the judgment sustaining the injunction, is only interlocutory, and does not release the surety. It may be dissolved on the final trial, as having been wrongfully obtained, and the surety condemned to pay damages.
    But a surety in an injunction will not be decreed to pay'damages on its-dissolution, for an instalment of the debt, which becomes due after the injunction is granted.
    The act of 1831, giving damages on the dissolution of injunctions, is considered to be one of great severity, which will be strictly and rigorously construed by the court.
    In 1834 the plaintiff obtained an order of seizure and sale, against a printing press, of the defendant Gibson, for an in-stalment of the purchase money then due, amounting to one thousand four hundred dollars. The defendant obtained an injunction against these proceedings, and gave James H. Caldwell as his surety in the injunction bond. Notice was given, and a rule taken immediately after, to show cause why the injunction should not be dissolved. On hearing the motion, the parish judge rendered an interlocutory judgment, overruling it.
    In the meantime, P. K. Wagner intervened in the suit, claiming also to be a creditor of the defendant, on, account of the printing press. The plaintiff answered, and denied his claim or right to interfere in the suit. Another instalment becoming due, of one thousand four hundred dollars, since the suing out the injunction, it was annexed to this suit in the answer of the original plaintiff.

      An intervention is, according to the Code of Practice, a separate demand, and consequently, the trial between the original parties can be properly gone into without it, or waiting for it.
    On a final hearing of the case, the injunction was dissolved, with damages, and the order of seizure 'and sale allowed to proceed. The judgment of the Parish Court condemned the principal and surety in the injunction bond, jointly and severally, to pay ten per cent., damages, on one thousand four hundred dollars, which was enjoined originally, and the same amount, being an instalment of one thousand four hundred dollars, which became due during the pending of the injunction suit. The defendants appealed. The surety prosecutes the appeal alone in the Supreme Court.

      Roselius, for the plaintiff.

      Sterrett, contra,

    contended, that judgment having been once rendered in favor of the plaintiff in the injunction, sustaining it, it could not be afterwards dissolved, to the detriment of the surety.

      2. The surety was released by the judgment sustaining the injunction, and he could not afterwards be made liable.
   Bullard, J.,

delivered the opinion of the court.

The surety on an injunction bond prosecutes the present appeal, in order to procure the reversal of a judgment by which he was condemned in solido with his principal, to pay interest and damages on the dissolution of the injunction. The principal has not appealed, and consequently, we can inquire into the correctness of the proceedings and judgment, only so far as the surety is affected.

His counsel contends, that the court erred in forcing the defendant into a trial without Wagner, who was a party. Wagner had intervened in opposition, setting up a claim to the property seized. This, according to the Code of Practice, must be considered as a separate demand, and, consequently, the trial between the original parties was properly gone into. Article 398.

It is further insisted, that the injunction having been once sustained by a judgment of the court, the surety was released from his responsibility, and that it could not, afterwards, be dissolved to bis detriment.

where a mo-1° dissolve overruled before merits, thejudg-jjj™ Cunction"if only interioeu-novelease ^the bT'díssoiíed'on the final trial as liirvinff Tjcgu wrongfully ob-surety condemned to pay dama-

a surety wm'Yá^e1*,-creed to Pay(la-mages on its dissolution, for thVdebt^vWch becomes due after the mjunction is granted.

^ ^ f i83i, giving da-dissolution ofin-junctions, iscon-sideredto beone of great severity,. strictly 'vlU and court.

It appears, that by an interlocutory decree of the court, rendered on a motion to dissolve the injuction before trial, upon the merits, the same was maintained, and the motion overruled: and upon the final trial, the court being opinion, that the injunction had been wrongfully obtained, it was dissolved, and the appellant condemned to pay damages and interest. We are of opinion, that the first judgment was not a definitive one, upon the question whether the injunction had been properly granted. Its only effect was to maintain the injunction in force until the final trial, and that the surety was not thereby released. " *

At the time the order of seizure and sale was taken out, and the injunction was granted, only one thousand four hundred dollars was due to the plaintiff. Another instalment fell due, pending the suit, and the appellant was condemned to pay damages and interest on both. The statute of 1831 authorizes a judgment against the principal and his , J . surety for damages, at the rate of twrenty per cent., and interest at ten, on the judgment. Now, the only sum due at the time the order was given, which is the only judgment in , , , , , J J , , the case which preceded the injunction, was one thousand four hundred dollars, and although it may be true that the seizing creditors had a right to have the property sold on sttch terms of credit as to meet the payment not yet due, it appears to us, that he had a right to make in money out of it, only the amount already due. The sale might have been stopped, and the property released, on paying that amount. The judgment was not for the whole amount of the price of the printing press; and we are of opinion that the obligation of the surety did not become more onerous pending tbe suit, . 1 mi m consequence of other instalments falling due. The act of 1831 is so extremely severe, that it has always received from this court a rigorous construction. We are, therefore, of opinion, that the damages and interest should have beep calculated solely on the sum of one thousand four hundred dollars.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court, so far as it relates to the surety of James H. Caldwell, be annulled, avoided and reversed, and proceeding to give such judgment, as in our opinion, should have been rendered below, it is further adjudged and decreed, that the plaintiff recover of the surety, James H. Caldwell, in solido with John Gibson, the sum of two hundred and eighty dollars damages, and interest at the rate of ten per cent., on one thousand four hundred dollars, from the 22d day of June, 1S34, and that the appellee pay the costs of this appeal.


text:
    PERRON vs. MAILLAN.
    Eastern Dist.

      February, 1837.
    AFFEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING.
    The sheriff’s deed executed and duly recorded in the clerk’s office from whence the execution issued, is full proof of what it contains, in all the courts of the state, in the same as a notarial act.
    But if a sheriff’s deed imports a special mortgage to secure the payment of the price stipulated in it, it must be recorded in the mortgage office of the parish where the property is situated, to have that effect against all persons.
    So, in a petitory action, to recover property purchased at sheriff’s sale, the sheriff’s deed, registered in the clerk’s office, is of such authenticity as authorizes it to be read in evidence, without further proof of its execution or publicity.
    This is a petitory action, in which the plaintiff seeks to recover from the defendant, a tract of land on the Mississippi, in virtue of a sheriff’s sale. The defendant holds the land in controversy by a regular sale and purchase by authentic act, subsequent to the sale to the plaintiff by the sheriff.

      On the trial the plaintiff offered the sheriff’s deed as evidence of his title, which being opposed and rejected by the court, from a judgment rendered against him, he appealed.

      Labauve, for the plaintiff,
    argued the case ex parte.

    1st. The court below erred in rejecting the sheriff’s deed, offered in evidence by the plaintiff. This deed should have been received and admitted in evidence, and the question whether it was a good title against the defendant, would have been examined and decided on the merits, after both parties had produced all their titles; but the plaintiff and appellant contends, that there is no law compelling a purchaser, for cash at sheriff’s sale, to record his deed in any parish judge’s office.
    2d. The judgment of the court should have been one of non-suit, the court having erroneously rejected the sheriff’s deed, the plaintiff could no longer, admitting it was necessary, show that the same had been duly recorded in the parish judge’s office; had the court received the deed, the plaintiff might afterwards show it was recorded. No law compels a party to make out his case at once, nor is there any manner described by law, by which evidence should be introduced ; all that the court has to see is, that the evidence should be admissible and legal when offered, and whether it makes out the case that is to be decided, after receiving the evidence of both parties.
    3d. The judgment rendered below should be here reversed,, the case remanded for a new trial, with instruction to the' judge not to reject the sheriff’s deed.
   Bullard, J.,

delivered the opinion of the court.

The plaintiff in this case sues to recover a tract of land, in the possession of the defendant, of three arpents, front' on the-Mississippi, in the parish of West Baton Rouge. He claims-title under a sale to him by T. G. Morgan, who, he alleges; acquired it by purchase from Maximilian Leblanc, by whom it had been purchased,, on the 21st January, 1828, at a sheriff’s sale, in the suit of Leblanc vs. Firmin Guidry, the tract of land having been sold as the property of Baptiste Guidry, the surety, in a twelve months’ bond.

The sheriff’s deed executed and duly recorded in the clerk’s office, from whence the execution issued, is full proof of what it contains in,all the courts of the state, in the same as a notarial act.

But if a sheriff’s deed imports a special mortgage to secure the payment of the price stipulated in it, it must be recorded in the mortgage office of the parish where the property is situated, to- have that effect against all persons.

The defendant sets up title under a sale of Baptiste Guidry, by authentic act, passed before the judge of the parish of West Baton Rouge, on the 22d November, 1834.

During the progress of the trial the plaintiff offered in evidence, the act of sale executed by the sheriff, of the land in controversy. Its admission was objected to, on the ground that it had not been recorded in the office of the parish judge of West Baton Rouge, and that objection having been sustained by the court, and the deed rejected as evidence, the plaintiff took a bill of exceptions, to which the sheriff’s deed is annexed, and a copy is before us in the record.

The sheriff’s deed appears to be in the usual form, and there is endorsed upon it a certificate of the clerk, that it had been duly recorded in his office, within the ten days next following its date.

The only question, therefore, -which this bill of exceptions presents for our consideration' is, whether the deed was admissible in evidence without proof, that it had also been recorded iu the office of the parish judge.

The Code of Practice requires that the sheriff shall, within ten days at furthest, deliver to the clerk of the court the original of the act of sale which he has passed to the purchaser, and makes it the duty of the clerk to record the act literally in a record book, to be kept by him for that purpose, and to endorse on the original his certificate of the registry. “ This act thus recorded and delivered to the purchasers, shall be held as full proof of what it contains in all the courts of this state, in the same manner as an act before a notary would be.” Articles 697-698. A previous article requires that if the act of sale includes a special mortgage to secure the payment of the price stipulated, the sheriff shall have it recorded before sending it to the clerk. Article 696.

The deed in question does not include a special mortgage to secure the payment of the price; on the contrary, the sheriff declares that the price had been paid in hand, and consequently the case is not to be governed by the article of the Code last cited. The registry in the clerk’s officfe gave to the sheriff’s deed such authenticity as authorized its being read in evidence, without further proof of its execution or publicity,'and wé are of opinion that the court erred in . . • mi i , ' . . rejecting it. The effect which ought to be given to it as evidence of title against a second purchaser, by authentic act duly recorded in the parish judge’s office from the original proprietor, who, in the mean time, had remained in undisturbed possession, notwithstanding the sheriff’s sale, is a distinct question, and one upon which the decision of the 1 . . case may ultimately turn. It is a question which, in the present stage of the proceedings, we do not feel ourselves authorized to approach. How far the forced alienation was valid against B. Guidry, himself, may depen.d upon proofs, independent of the sheriff’s deed ; and the. defendant who holds directly from him may, or may not, have had notice of that alienation. Of these matters we are not sufficiently informed by the record to enable us to decide finally upon the relative pretensions of the parties.

Soinapeüto-ry action to purch<ased°Peia3t registered in the ot^uehawhenti-citr.as ydiiori-zes it to he read in evidence, proof of its «ce- or Pub"

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the case be remanded for a new trial, with instructions to the judge not to reject the sheriff’s deed as evidence, on the ground that it does not appear to have been recorded in the office of the parish judge, and that the appellee pay the costs of the appeal.


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    BISSELL ET UX. vs. ERWIN’S HEIRS.
    Eastern Dist.

      February, 1837.
    APPEAL FROM THE COURT ' OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE DISTRICT PRESIDING.
    In a contract of sale of a plantation and slaves, for a stipulated sum, on long credit, and an annual rent reserved, the parties will not be regarded in the light of lessor and lessee because of the rent, as the pretended lessee is himself the owner. The payment of an annual rent is but a stipulation for interest in disguise.
    Where the purchaser subsequently executes a private instrument, or memorandum, in* which he declares “he has this day rented from J. E. (his vendor,) his plantation, whereon I now live, together with the negroes,&c., and I engage to pay the taxes, &c., and a certain sum clear and free of all expense, &c., and that J. E. have a privilege on all the cropsHeld, that this was only a harmless simulation, which did not rescind the sale.
    So where a purchaser or creditor is evicted by a prior mortgage, which existed on the premises when he bought, and the eviction was had before the expiration of the term of payment, the seller will be liable in warranty, as the vendee is not in delay as regards the payment.
    The signatures to receipts of deceased persons, offered to charge their estates, must be strictly proved by experts, and according to the principles established in the case of Plicque and Le Beau vs. Labranche. 9 Lousiana Reports, 559.
    The plaintiff, F. N. Bissell, and his wife, who was formerly the wife of Abram Wright, now deceased, sue to recover from the defendants a large sum of money, which they' allege was paid, and also damages, on account of an eviction from a certain sugar plantation, by a previous mortgage given on the property by the defendant’s ancestor.
    The plaintiffs show, that on the 13th May, 1827, Joseph Erwin sold to Abram Wright, for the sum of eleven thousand dollars, payable in fifteen years, a plantation and slaves on the Mississippi river, in the parish of Iberville, near Manchac,' which he, the said Erwin, had previously purchased, at sheriff’s sale, under an execution against the said Wright in 1823, and that the vendor warranted the possession and title against all evictions. It further appeared, however, that Erwin had before this sale, to wit, in 1S26, mortgaged this same property to the Bank of the United States, to secure a large sum of money. In 1833, the bank enforced the mortgage, and the premises were sold in pursuance thereof.
    Mrs. Wright, now the wife of Bissell, further states, that her husband, Abram Wright, died in 1829, leaving but one child, and that she has accepted the community, and that they are entitled to exercise all the rights of the original vendee. They allege, that they have suffered damages in the sum of fifty-six thousand five hundred dollars, in consequence of the eviction by said mortgage, for moneys paid, and losses sustained in the ameliorations and improvements, put on the plantation, and for the increase of slaves, &c.
    The defendants denied their liability, under the lease or sale set up. They further averred, that Wright, in his life ' time, or any person for, or on his behalf, either before or since his death, have ever complied with the terms and conditions, in order to entitle them to the benefits of said agreement or lease. That no part of the purchase money has been paid, not even the rent.
    They further aver, that at the time of sale, said Wright was fully aware and apprized of the mortgage existing on the plantation and slaves; and that in 1828, Wright gave a written instrument, stating he had rented the said premises of Joseph Erwin, &c. They pray that the demand of the plaintiffs be rejected, and the suit dismissed. They set up a claim for rents, &c., in reconvention.
    The case was submitted to a jury, who returnéd a verdict for the plaintiffs in the sum of three hundred and fifty dollars. From judgment rendered thereon, they appealed.

      Stacy, Ives and Labauve, for the plaintiffs.
    1. The act of sale from Erwin to Wright, of the plantation and slaves, is accompanied by a rente constitute, but even if it were a rente foncikre, it would not be the-less a sale. 3 Louisiana Reports, 535. 5 Martin’s Reports, 309.
    2.It is a sale subject to be dissolved by the non-payment of the rent according to the contract, which contains the resolutory condition expressed. Louisiana Code, 2040, 2041, 2755.
    3. On the non-payment of the rent, the sale would not have been dissolved ipso facto; the party must have been put in mora, and destituted by suit brought — Civil Code, 2042; and the party might have had a delay accorded him to comply with the contract, (same act.) The rent was settled by Wright up to 1830, and after that time no demand was made by the heirs of Erwin.
    4. The court erred in overruling plaintiffs’ exception, filed 4th October 1836, to the demands in reconvention and compensation, contained in the answer of the heirs of Lavinia Erwin, filed 27th September, 1836, and in not striking from said answer, said demands in reconvention and compensation, for the reasons contained in plaintiffs’ bill of exceptions. Code of Practice, article 375, 7 JV. S., 288, 516.
    5. The court erred in rejecting the testimony of J. J. Burk, to prove the signature of Erwin, to the receipt referred to in plaintiffs’ bill of exceptions ; the witness had sufficiently qualified himself to prove that fact. 7 Martin’s Reports, 368, 2 Starkie’s, 651, 2 Johnson’s Cases, 214-19, Johnson’s Reports, 134, Louisiana Code, 2260. The only restriction or change made by the Code of Practice, in the ordinary legal rules of evidence, is when the defendant is called upon by the plaintiff to confess or deny his signature, and then has denied it. Code of Practice, 323,324, 325,326. This decision of the court deterred plaintiff from calling any further-witnesses, who having the same knowledge as Burk, might have proved the signature.
    6. The second act being only signed by Wright, and not by Erwin, could not annul the first act.
    7. The court erred in charging the jury, that if the first act was a sale, no necessity existed for putting the plaintiff in mora, previous to divesting him of the property, and instructing the jury to make no inquiry upon that point, See the authorities before cited.
    „In, a «ontfact of sale ot a plan--tation and slaves sum* ancThmg. “ent1*’ reserved1 parties will not be regarded in the light of beS(Musen<ofeSthe rent> as,the Pr?' tended lessee himself the payment of are ^“^stipulation for interest i»

      Winchester and Pierce, contra.

   Bullard, J.,

delivered the opinion of the court.

The plaintiffs seek to recover in this action, damages occasioned by an eviction of a tract of land and a number of slaves, which they allege were purchased by their ancestor, from the ancestor of the defendants. The eviction is shown to have taken place, in consequence of a mortgage given by Erwin. The essential character of that contract, and of another subsequently entered into between Erwin and Wright, forms the principal subject of controversy in the case.

The act under private signature of the 13th of May, 1827, recites that Erwin sells to Wright the property in question, for a sum of eleven thousand dollars, payable in fifteen years; Wright agrees to rent the plantation and slaves from Erwin, for each year, for the sum of eleven hundred dollars, Erwin reserving a privilege on the crops. It is agreed, that Wright is not to be dispossessed in the event of Erwin’s death, until the full term of fifteen years, provided the rent be paid up each and every year. If the rent should not be paid in any one year, and in consequence of the failure of crops, it is to be prolonged another year, on the payment of ten per cent., interest, on the rent in arrear. If any of the slaves should die, it is agreed J 7 # ® that Erwin is to convey only what remains with the increase; Wright reserves to himself the faculty of. paying the whole price, at any time previously to the expiration of the fifteen years. And in that case, Erwin binds himself to convey the property.

We find no difficulty in pronouncing, that this contract embraces all the essentials of a sale, and was complete as such 7 1 between the parties. The property was at the risk of the purchaser, and as between them no further act or conveyance was necessary to complete the contract. The agreement as to rent, is nothing more than a stipulation to pay interest on the price, at the rate of ten per cent., disguised under that form. That such an agreement did not create the relation of lessor and lessee between the parties is clear, because the Pretended lessee was himself the owner of the property which was already at his risk, and it is absurd to say, that one may , be the lessee of his own property.

Where the purehasersubse-a pdvatelnstíument or memorandum, in which he de-dures ^ Iig lias this day rented vendor )E ’ his plantation, whereon I now live, together fe^^andT engage to pay the a certain’sum, aU expense,'e&ci! and that j. E. have a privilege on all the crops;” was only ifharm-which "did ^not rescind the sale.

But it is contended, that by a subsequent agreement on the 25th of November, 1828, the original contract was, in effect, rescinded, and Wright became the real lessee of the property. This agreement which is signed only by Wright, is a memorandum, “ that the undersigned has this day rented of Joseph Erwin, his plantation, whereon I now live, the present and next crop, say ending the 1st of January, 1830, together with the negroes, &c. I engage to pay all expenses of said plantation, slaves, taxes, &c., and to pay the said Joseph Erwin one thousand eight hundred and forty-seven dollars and eighty-four cents, clear and free from all and every expense, and that the said Erwin shall hold a privilege right on all th'e present and future crops, &c.” We ,do not see in this agreement, any abandonment of the light on the part of Wright, to pay the price stipulated by the first contract> aiKl relieve himself from the payment of any further rent or interest on the price. The two contracts are not more repugnant to each other than the first is to itself; the on]y difference appears to us to be a difference of rent for one J 11 year and part of another. That this memorandum does not in itself show a reconveyance to Erwin, is clear, and if the ®rst contract was cancelled, and the property reconveyed, it must be shown by different evidence. We regard this as . . , . _ ,. a mere continuation of the same fiction, and as evidence of some settlement in relation to the rent, which had been paid Up to its date, and for what should be paid for the year 1829. After that'period, the original contract would still be in foi’ce, for ought that appears in this agreement. Admitting that the expression “ his plantation, &c.,” makes it probable . ‘ 1 . r that Erwin had become the real owner again, yet it could at best furnish but a commencement of proof in writing, which can 110 Í°n&er by law, be eked out by secondary evidence, The parties appear to have desired that the world should consider Erwin as still the owner, under the previous sheriff’s sale, and Wright, the former owner, as merely his tenant. Both acts, under private signature, present them in that light relatively to each other, and may, in our opinion, all be considered as consistent with each other. That it was a harmless simulation, as the rights of third persons were not affected.

So where a purchaser or creditor is evicted by a prior mortgage, which existed on the premises when he bought, and the eviction was had before, the expiration of the term of payment, the seller will be liable in warranty, as the ven-dee ' is not ia delay as regards the payment.

The signatures to receipts of deceased persons, offered to charge their ‘ estates, must be strictly proved by experts, and according to the principles - established in the case of Plicque $nd •Le Beau vs. Labvanche. 9 Louisiana Be* porlSy 559.

The eviction is shown to have taken place, in consequence of a mortgage created by the vendor. Towards Wright, Erwin was a warrantor, according to our understanding of the contract. The former was not in delay, as to the payment of the price, as the fifteen years had not expired.

We are of opinion, that the court did not err, in refusing to permit the alleged receipt of Erwin, for the price and rent? to be read to the jury. The report of the experts did not sufficiently prove it to be genuine, and under the circumstances of this case, strict proof should be required, according to the principles settled by this court in the case of Plicque and Le Beau vs. Labranche. 9 Louisiana Reports, 559.

The verdict of the jury appears to us, not to have done justice between the parties, according to the evidence in the record, and the case must be remanded.

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


author: Bullard J.,

text:
    STEWART’S CURATOR vs. ROW.
    Eastern Dist.

      February, 1837.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    Where a person died in one parish, and a curator was appointed in another, and his capacity or authority to sue is denied : Held, that whether the Probate Court of A or that of B had authority to appoint a curator, depends on facts which may not be known to the District Court, and which it could not inquire into collaterally and incidentally.
    Where a will has been proved in the Court of Probates by a competent number of witnesses, and its execution is not ordered by a decree of that court, it cannot have any effect.
    A testament is without effect until it has been duly proved and its execution ordered.
    If the testator has failed to name an executor, the judge must ex officio appoint a dative testamentary executor, and the will ordered to be executed.
    If from any cause the court should be of opinion that the jury were misled as to the effect of a document which is part of the evidence, the case will be remanded for a new trial.
    This is an action by the curator of the succession of Dudley B. Stewart, to recover from the defendant nine or ten slaves in his possession.
    The plaintiff alleges that Stewart intermarried in the state of Mississippi, and that he received these slaves in right of his wife, as in that state slaves are personal property, and by the laws there, the husband becomes possessed, and is owner of the personal property of his wife. He also sets up title to the slaves in question, under a paper purporting to be the will of Mrs. Stewart, in which she bequeathed them to her husband.
    The defendant denied the right of the curator to sue, because he was not appointed by the Probate Court of the parish where the succession of Stewart was opened. Further, that Stewart never was the owner of the slaves, either by marriage in Mississippi, or by any other title.
    The evidence and facts of the case are set forth in the opinion of the court.
    The plaintiff had a verdict and judgment for the slaves, from which the defendant appealed.

      Andrews and Bradford, for the plaintiff,
    contended, that the verdict of the jury was supported by the evidence, and the judgment should, therefore, be affirmed.

      2. The verdict of a jury will not be set aside without clear and legal cause, which show that it is manifestly erroneous. 6 Louisiana Reports, 601, 7 Ibid 71, 8 Ibid 514.
    3. The objections made to the appointment of the curator cannot avail in this case. The nullity contended for is not absolute, and can only be taken advantage of by the heirs, and that, too, in the Probate Court. ' 3 Martin, N. S., 453. 4 Louisiana Reports, 271.

      Turner and Boyle, contra.

    1. The verdict is clearly erroneous. There is no legal proof that Mrs. Stewart, by whom the husband is said to have become the owner of the slaves in question, was herself ever the true owner.

      2. There is a total want of right in the plaintiff to recover, for Stewart, in his lifetime, had no title to these slaves.
    3. The will, under which he claims, is a nullity, having never been admitted to probate and ordered to be executed. There should be judgment for the defendant.
   Bullard J.,

delivered the opinion of the court.

The plaintiff sues, as curator of the vacant estate of one Stewart, to recover certain slaves in possession of the defendant.1 The deceased is alleged to have become the owner of the slaves by his marriage with his late wife, in the state of Mississippi, in which state the parties admit that slaves are considered as chattels; and that the personal property of the wife at the time of the marriage, becomes the property of the husband. He further asserts title to them under the last w¡[[ 0f Stewart.

Where a person died in one parish, and a curator - was appointed in another, and his capacity "or authority to sue is denied: Held, that whether the Probate Court of A or that of B, had authority to appoint a curator, depends on iacts which may not be known to the District Court, and which it could not inquire into collaterally, and incidentally.

Where has been proved in the Court of competent number of witnesses, and its execution is not ordered by court,'Tt cannot áiave any effect,

The defendant, besides denying the title of the plaintiff’s intestate, pleads that the letters of curatorship, under which-he is proceeding, are null and void, having been granted by a court without jurisdiction, to wit: 'by the Probate Court for the parish of West Feliciana, whereas Stewart died, and his succession was opened in the parish of Avoyelles. We are of opinion that the District Court correctly overruled this exception. Whether the Probate Court of the parish of Avoyelles, or that of West Feliciana, had authority to appoint a curator to the estate of Stewart, depends upon facts which may not be known to the District Court, and into which it could not enquire collatterally and incidentally. The cura-torship was conferred by a Court of Probate; and, although an appellate court might be of opinion, under the circumstances of the case, it belonged rather to the court of Avoy-elles than to that of West Feliciana to make that appointment; yet the District Court is without authority to enquire into the facts, upon which the rightful exercise of jurisdiction depended. In relation to the subject matter, the Probate Court had jurisdiction. Whether it erred in this particular-case, the District Court was not competent to enquire, and the Supreme Court is now called on to examine only the proceedings in the latter, and not those of the Court of Probates.

The case was tried by a jury, who found a verdict in favor of the plaintiff; and their verdict would not be disturbed by us, unless we were satisfied that they had been misled in point of law.

The evidence in the record does not render it very clear Stewart, during his marriage with his deceased wife, . . , . ... .... „ , possessed the slaves in question, within the limits of the staie of Mississippi; and we are, consequently, authorized to presume that the jury gave effect to the alleged will of Mrs. * . J 0 . . Stewart, as the title upon which the plaintiff was entitled to recover. A paper was read in evidence, without objection in the first instance, purporting to be the' last will of Mrs. Stewart, by private act, attested by three subscribing witnesses, together with a copy of the testimony of those witnesses, in the Court of Probates, to prove the will, but without, any decree or order of that court directing its execution. Before the trial closed, the defendant’s counsel prayed the court to instruct the jury that they must reject or disregard the will, on the ground that it did not appear, from the will itself or the probate, that it had been dictated by the testatrix, or that there was a sufficient number of witnesses. The judge refused to give this charge, and we are not prepared to say, that, on the grounds assumed, he was wrong; but we think that for other reasons, equally apparent, he was bound to instruct the jury, that they ought not to give any effect to the will of Mary Stewart, until its execution had been ordered by the Court of Probates. From the silence of the judge on that subject, the jury may have inferred that they were to regard the papers before them as a testament and evidence of title in the plaintiff’s intestate. It is clear that a testament is without effect until it has been duly proved, and its execution ordered by competent authority. Louisiana Code, 1637. The Code of Practice,-(articlé 192,) requires that prods verbal of the probate of a will shall contain four things : 1st, the manner in which the opening and proof were made; 2d, the names of the witnesses, and the manner in which they made their declarations ; 3d, the reading the will to the witnesses and other persons present, and 4th, the order for executing and recording the will, &c. In the present case no such order was given, and it does not appear that the Probate Court was satisfied of the legal validity of the will. It has been urged that an order to execute the will was unnecessary, as the testatrix had not named a testamentary executor. Such a case is provided for by the 1671st article of the Louisiana Code, which declares, that when the testator has omitted to name , -.i-]» . . an executor, or the person named declines the trust, the judge shall appoint one ex officio, who is styled a dative testamentary executor.

testament is without any ef-been'duly pro-cuúo^ordered6"

ha*f ^aiiSf^to name an execu-must,thea;JUo^-cio, appoint a dative testamen-Rny executor, and the will ordered tobe executed'

if from any cause the court should be of jury'were^mls-led, as to the effect of a document which is dencef tíe casé will be remanded foranew trial.

Believing, as we do, that the.jury may have been led into error, in relation to the validity of the testament of Mary Stewart, and that by sanctioning their verdict, we might give effect to it contrary to law, we think justice requires that the case should be remanded for a new trial.

^ ^s’ therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, the ,. verdict set aside, and that the case be remanded* for a new trial, and that the costs of the appeal be paid by the appellee,


text:
    LEE'S HEIRS vs. BURKE.
    Eastern Dist.

      February, 1837.
    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING.
    The 433d article of the Code of Practice, requires that after depositions of witnesses are taken, the commissioner must cadse them to be signed, and then draw a procés verbal of the taking such depositions.
    But the Code does not require that the procés verbal shall, under pain of nullity, immediately follow the examination of the witnesses. It is sufficient, if, within a reasonable time after their examination or oath, and their depositions reduced to writing and signed, the commissioner makes his certificate of the manner in which he has executed the commission.
    Any opinion which the commissioner may append to his certificate, or procés verbal, about the sufficiency of the proof, to establish the fact in which the witnesses have been examined, will be considered harmless, and of no effect.
    This is an action against the defendant, as surety in a curator’s bond.
    The plaintiff, Elizabeth Lee, residing in Harford county, Maryland, alleges, that she is the lawful heir of one Corbin Lee, wbo was domiciliated, and died in the parish of Iber-ville, in the year 1829, leaving property, as per inventory, amounting to one thousand eight hundred and eighty dollars,
    That in January, 1830, one James Lee, was appointed curator of his estate, with the defendant, as his surety.
    That the time for which said curator rvas appointed, has long since expired, and he has never rendered an account of his administration, but on the contrary, took possession of all the property of said estate, and has converted it to his own use, by reason of Avhich the penalty of his curator bond has become forfeited, and his surety liable for the sum of two thousand three hundred and fifty dollars.
    The defendant first excepted to the jurisdiction of the court, averring that the matters set forth, were exclusively cognizable in the Court of Probates. The exception was overruled.
    • The defendant in his answer, denied the plaintiff’s capacity as heir : he further averred, that he could only be made liable, if at all, for the value of the property unaccounted for, and not for the penalty of the bond. That the curator paid debts of the succession, to the amount of the full value thereof; and especially a debt to him, the respondent, for eight hundred dollars, who was a creditor. Other facts are pleaded, specially to show a diminution of the succession, and that the surety is not responsible for any amount on the bond.
    A commission was taken out, by the plaintiff’s counsel, to the state of Maryland, to obtain testimony establishing the heirship of the plaintiff. On its return, various exceptions were taken to the manner of executing it, which are stated at large in the opinion of the court, by judge Bullard.
    The plaintiff appealed from judgment, rejecting her demand.

      Stacy, for the plaintiffs,
    argued the case ex parte.

   Bullard, J.,

delivered the opinion of the court.

The petitioner, alleging himself to be the heir at law of Corbin Lee, deceased, instituted the present suit against the defendant, as surety of James A. Lee, in a bond executed by him on bis appointment, as curator of the vacant estate of said Corbin Lee.

An exception to the jurisdiction of the District Court, having been, we think, correctly overruled, the defendant answered to the ^merits, and among other matters, not now necessary to mention, specially denied the heirship of the plaintiffs. In order to establish the fact of heirship, a commission was issued, addressed to Stevenson Archer, Henry G-. Waters, or some other magistrate of Harford county, state of Maryland, as commissioners.

On the trial in the District Court, certain depositions of witnesses, taken under that commission, were offered in evidence, and rejected; and the'case is before this court, upon a bill of exceptions, taken to the opinion of the judge in that particular.

The ground upon which the depositions were rejected, appears from the bill of exceptions, to have been that the proems verbal required by law, to attest the jurat of the witness, should have constituted one consecutive act; should appear to have been done simultaneously, or immediately after the oath had been administered and reduced to writing, whereas, this appears to have been done on a subsequent day, and, if allowed, might be extended to a,ny length of time; and on the further ground, that the certificate is informal, not directly, but by way of recital, and evidently executed by an improper and partial commissioner.

It appears from the return to the commission, that several witnesses were examined on. oath; that the acting commissioner commenced the examination on the 25th of January, 1836, continued it on the 26th, and the commission was finally closed, and the proces verbal bears date the 28th of the same month. In the caption, the commissioner merely certifies under his signature, that in virtue of the annexed commission, he had summoned several witnesses to appear before him, and that he had administered an oath to them seperately, and that he had proceeded to take their answers to; the several interrogatories. On closing the commission three days afterwards, he certifies that some of the witnesses had been examined on the 25th, and some on the 26th, and that their answers to the interrogations will be found above each of their own proper signatures. The whole are annexed to the commission and original interrogatories, and returned under the seal and signature of the commissioner. It appears to us that this is, if not a literal, yet a subtantial compliance with the 433d article of the Code of Practice, which requires that after the depositions have been taken, the commissioner must cause them to be signed, and that he shall then draw a prochs verbal of the taking of such depositions. The Code does not require that the prochs verbal shall, under pain of nullity, immediately follow the examination of the witnesses. It is sufficient, in our opinion, if within a reasonable time after the witnesses have been examined on oath, and their depositions reduced to writing and signed, as required by law, the commissioner makes his certificate of the manner in which he has executed the commission.

The 433d article of the Code of Practice requires that after depositions of •witnesses are taken, the commissioner must cause them tobe signed, and then draw a proces verbal of the taking such depositions.

But the Code does not require that the proces verbal Easily under pain of nullity, immediately follow the examination of the witnesses. It is sufficient, if within a reason-«ble time their examination on oath, and í^ducetPto wrf-ailtl s.'Sl;ed> the commissioner makes his mánner)n which ]!e has oxfellted

Any opinion missi0ner may certificate0 'or procés verbal, ciency of the {heffot in-which the witnesses have been examined, will be ^"mhSfand of no effect,

The last objection, to wit: that the commission was evidently executed by an improper and partial commissioner, J J 1 1 r , appears to be founded on a statement made by him, and appended to his prochs verbal, that “ he did not think it necessary to multiply testimony, else it would be no J r J J * . matter to find ten or fifteen respectable witnesses that would testify to the same facts, &c. If he only meant to say that the fact sought to be proved, was as well established by the oath of four witnesses, as it would be by ten or fifteen others, it was certainly a very harmless opinion. His opinion, as to the sufficiency of the evidence, could not possibly have any influence in the decision of the cause, for his prochs verbal is only intended to satisfy the court, that the depositions of the witnesses have been regularly taken, and they alone are to be received in evidence. The commission issued by the . ... i-ii . . District Court in this case, authorized the commissioners to examine all witnesses whatever, without naming any in particular. The commissioner perhaps thought himself obliged to state why he did not proceed to examine any others than those specially named in the interrogatories; at any rate, we are of opinion, that such an intimation frotp him, forms no sufficient ground for rejecting the depositions, and that the court erred.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed; that the case be reinstated and remanded for a new trial, with instructions to the judge, not to reject the depositions in question on the grounds set forth in the Bill of Exceptions, and that the appellee pay the costs of the appeal.


text:
    HUTCHISS, TUTOR &c. vs. DODD ET AL.

    Eastern Di§t.

      February, 1837.
    APPEAL FROM THE JUDGE OF THE PROBATES FOR THE' PARISH OF ' WEST BATON ROUGE.
    An appeal cannot be maintained from the refusal of the judge, to order a re-sale of minor’s property, when the appeal bond is only taken to the under tutor, and when neither, he nor any other parties, are cited in the appeal.
    The petitioner alleges, that he is the tutor of the minor heirs of James Hacket, deceased, and that their property consists principally of landed estate on the Mississippi river, which is very valuable, but which has been appraised and directed to be sold by the advice of a family meeting; that a sale took place on the 8th of September, 1836, but that it was adjudicated by the parish judge to the purchasers, for less than its appraised value, in consequence of which, the sale is a nullity; that the parish judge refuses.to order a re-sale, although it is for the interest of said minors, that it be re-sold. He protests against the defendants, as having acquired nothing by their purchases, and that said sale is a nullity.

      An appeal cannot be maintained, from the refusal of the judge, to orders re-sale of minor’s property, when the appeal bond is ’ only taken to the under tutor, and when neither he nor any other parties are cited in the appeal.
    There is no one cited, or made a party to these proceedings.
    But the probate judge on being requested to re-sell the property, refused, on the ground that it had been ordered to be sold to pay certain debts.
    The family meeting- decided that the property should be sold in two portions separately, and no minimum having been stipulated for either portion, it is impossible to say at what price either of them should be sold; one of the portions including all the improvements, the other being without any, &c. It is ordered that the plaintiff’s demand be rejected, &c. From this judgment the plaintiff appealed.

      Davis, for the plaintiff,
    argued this case • ex parte, and maintained the following points:
    1. The nullity of the sale alleged is an absolute nullity, which gives no title to the purchaser.
    2. The judgment of the probate judge should be reversed, and this case remanded, with instructions to re-sell the property of the minors, in conformity to the provisions of articles 336 and 337 of the Louisiana Code.

    3. The exceptions to the general rule, recognized by the court, in 7 Louisiana Reports, 312, is confined to positive and special cases, and in that case, to the demand of the appellant.
   Martin, J.,

delivered the opinion of the court.

The tutor of the minor is appellant from the refusal of the judge, to order a re-sale of certain lands of theirs, which are alleged to have been illegaly sold. The appeal bond is in favor of the under tutor, but neither he, nor any other person has been made a party to the appeal by a citation. It is, therefore, clear that we cannot inquire into the correctness of the judgment ex parte; the appeal must, consequently, be dismissed.


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    WOOD vs. BROWN.
    Eastern JDist.

      February, 1837.
    APPEAR PROM THE COURT OF PROBATES FOR THE PARISH OF WEST FELICIANA.
    When the father and mother are dead, the grandfather is entitled, of right and by law, to the tutorship of the minor children. No supposed aversion of the minors towards him can deprive him of it, that it may be given to a brother of the deceased.
    There is no obligation on the-party to cause an inventory to be made of the property of the minors, until he is appointed and qualified as tutor.
    Where there is no tutor appointed by will, the judge of probates is bound to give it to the nearest ascendant relation of the minor, and no family meeting is required.
    This suit is instituted, on tbe part of the plaintiff, to be appointed tutor to certain minors. He alleges he is the grandfather of two minor children, Isaac N. and Thomas G. Brown, whose parents are both dead, and that he is entitled to the tutorship of said minors by law; but that a family meeting had been unnecessarily convoked, and given the tutorship to J. N. Brown, a brolher of the deceased. He prays that all these proceedings be disregarded, and the said James N. Brown cited to show cause why the tutorship shall not be given to the petitioner.
    The defendant admitted that the plaintiff was the nearest ascendant relation, but that his age and infirmities rendered him incapable to discharge the duties of tutor.

      2. That the father of the minors, on his death bed, solemnly requested that his brother should take charge of the persons and property of his children.

      3. That the plaintiff has failed to have an inventory taken of the minor’s property, within the time prescribed by law. He prays that his application be rejected, and that he be confirmed in his tutorship, &c.

      When the fa-^Xad^the fj, ¡^ and by law, to íhe minor chil-of minors to-deprive MrrTof ^Ifto TLo-,her of the deceased,
    There is no party ta°causemi inventory to be made of the property of the mi-appointed hand qualifiedastutor.
    It was admitted that the plaintiff’s age was fifty-four years, and the two minors, twelve and six years old. That no inventory or appraisement has yet been caused to be made by the plaintiff, although John Brown, the father, died three months before this suit.
    The judge of probates rendered judgment for the plaintiff, appointing him tutor to said minors, from which the defendant appealed.

      Bradford, for the plaintiff.

      Johnson, contra.

   Martin, J.,

delivered the opinion of the court.

The defendant is appellant from a judgment, which refuses to him the tutorship of the minor children of his brother, and gives it to the plaintiff, their grandfather. He had been appointed tutor by a family meeting, which the plaintiff alleges was irregularly held, and which the defendant admits to be a nullity. The defendant contended, that letters of tutorship ought not to be given to the plaintiff; 1st. Because his age and infirmities disable him from performing the duties of tutor. 2d. Because the father of the minors solemnly requested that the defendant, his brother, should take charge of his estate, and manifested the greatest aversion to the plaintiff’s doing so. 3d. Because the plaintiff neglected to cause an inventory to be made.

I. The testimony shows that the plaintiff is only fifty-four years of age, and there is no evidence of his being infirm.

ll. However solemn may have been the request of the minors’ father, that the defendant should take care of his estate and of them, it cannot amount to the appointment of , . the defendant as tutor, because it was not made by will; neither can any evidence of the alleged aversion to the plaintiff, authorize his exclusion from the tutorship. 1

ttt r™ it • , IIL Ihere was no obligation on the plaintiff to cause an inventory to be made, until he was appointed, and had been qualified as a tutor.

■Where there is no- tutor appointed by will, the judge of probates is bound to give it to the ant1 delation°of the minor, and no family meet-iqgis required.

There being no tutor appointed by will, it was the duty of the judge of probates to give the tutorship to the nearest asCendant of the minors. Both their parents being dead, the plaintiff, their grandfather, is entitled to letters of tutorship; and no family meeting ought to have been called. Civil 7 9q-i uoae5 ¿Qí-

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


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    KAIN AND STROUD vs. COMMERCIAL BANK.
    Easteiot Disx.

      February, 1837.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    On a question of fact, whether the plaintiffs sold the articles charged, to the defendants or to the undertaker, when the evidence fails to show the court below erred, its judgment will not be disturbed.
    This is an action, instituted by tlie plaintiffs against the defendants, charging them with sundry articles, as pillaster -chimney pieces, Roman cement, grates, and various other things, according to a detailed account rendered and annexed to the petition, amounting’to one thousand two hundred and seventy-nine dollars and twenty-five- cents, per the order of Mr. Clarkson.

    The defendants pleaded a general denial.
    Upon the trial, testimony was taken to show who ordered the materials in question, the bank denying that the plaintiffs had any right to look to them, &c.
    After examining all the testimony, which relates solely to -matters of fact, the district judge rejected the main part of the demand, and gave judgment for only ninety-seven dollars and twenty-five cents, and costs. The ■ plaintiffs appealed.
    On a question of fact, whether the plaiptifFs sold the articles charged, to the defendants or to the undertaker, •when the evidence fails to show the court below erred, its judgment . will not be disturbed*

      G. JB. Duncan, for the plaintiffs.

      Conrad, contra.

   Bullard, J.,

delivered the opinion of the court.

This case presents only a question of fact, to wit: whether certain mantel pieces which were put up in the banking house of the defendants, were sold by the plaintiffs to them, or to the undertaker who had constructed the building. An attentive examination of the evidence has failed to satify us, that the court below came to an erroneous conclusion.

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


text:
    HYDE ET AL. vs. MISSISSIPPI MARINE AND FIRE INS. CO.
    Eastern Dist.
    February, 1837.
    APPEAL FROM THE PARISH COURT, FOR THE TARISH AND CITY OF NEW-OSLEANS.
    Where a steamboat is insured for a month, and sustains an injury under this policy, in a distant place, for which the underwiters are liable; and a second policy is taken out at the end of the month for another, making insurance against all risks, on condition that the damage sustained under the first policy be repaired, &c., and while repairing she sunk: Held, that the underwriters are liable, and that this was not a condition precedent, postponing the risk until the repairs were completed.
    This is an action on two policies of insurance, to recover the sum of four thousand dollars, the amount insured on the steamboat Tom Bowling, at the office of the defendants.

      The plaintiffs allege, that while the boat was running under a monthly policy, abount the 12th of June, 18S5, she struck a rock in the Arkansas river, and put into Little R°ck to repair, and of which the defendants had due notice before signing the second policy ; that on the 25th of June, they took out a second policy for another month, and while the boat was repairing, on the 29th of June, the water rose suddenly and she sunk, and became a total loss, of which the company were duly notified, and an abandonment tendered.
    The defendants pleaded a general denial.
    The evidence showed, that on the 25th of May, 1835, the plaintiffs insured the sum of four thousand dollars on the steamboat Tom Bowling, for one month, at five per cent., to run on the Mississippi and her tributary streams.
    That about the 12th of June, the boat struck on some rocks'-in the Arkansas river, at a place called Webber’s Palls, and put back to Little Rock to repair. This fact was notified to the defendants.
    On the 25th of June, 1835, the first month expiring, the plaintiffs took out a policy for another month, covering the same risks, and at the same premium, in which was inserted: “On condition, the. damage done by grounding on Webber’s Falls, be repaired, and she be put in as good order, as she was previous to that accident.”
    The testimony showed further, that the boat was at Little Rock, in Arkansas, undergoing repairs, when on the 29th of June, a sudden and great rise came in the river, accompanied by a storm, and she sunk. She was abandoned to the underwriters as a total loss.
    The plaintiffs had judgment, from which the defendants appealed.

      Strawbridge, for the plaintiff,
    cited the following articles of the Code, in relation to the interpretation of contracts in support of the case. Louisiana Code, articles 1992, 2449.

      Lockett, contra,

    contended, that the insurance was made on a condition precedent, which was first to be performed before any liability could be incurred under the policy.

      Where a steamboat is insured for sc month, and sus-táins an injury under this policy, in a distant place, for which the underwriters are liable, and a second policy is taken out at the endofthismonth for another, making insurance against all risks, on condition that the damage sustained tinder the first policy be repaired, Sec., and while re-pairingshesunk: Held, that the underwriters are liable, and that this was not a condition precedent, postponing the risk until the repairs were completed.
   Martin, J.,

delivered the opinion of the court. ,

The petitioners allege, that their steamboat Tom Bowling, was insured in the defendants’ office, by two monthly policies. That on their application for the second policy, the boat had sustained considerable damages, for which they had a claim on the defendants, and that, afterwards, while she was at the risk of the defendants, under the second policy, she was entirely lost and destroyed, during, and in consequence of a storm; wherefore, they claim a compensation as for a total loss.

The defendants pleaded the general issue.-

There was judgment for the plaintiff, for four thousand dollars,, and the defendants appealed.

The facts alleged in the petition, appear to be establshed.

There cannot be any doubt, that the defendants are liable for a partial loss, under the first policy. The doubt whether they be so for a partial or total loss on the second, arises on a clause in that instrument, in which it is stated, that the insurance is made on condition that the damage which the boat sustained, while she was at the risk of the defendants under the first policy, should be repaired, and the boat put in as good a condition as she was previous to the accident, which occasioned the damage sustained under the, first policy; in other words, whether this was a condition precedent, postponing the risk until it was accomplished. We are of opinion it was not

The risk under the second policy began on the 25th June, at twelve o’clock at noon. The accident under the first policy happened on the 12th of the same month. As the second policy was against all risks* happening between the 25th of June, and the 25th of July, it is clear that it was not the intention of the parties that the obligation which the insured incurred, to send to Little Rock, on the Arkansas river, where the boat lay, and have the repairs completed, should suspend the risk within the time necessary to effect this, which probably must .have consumed the better part of the time for which the insurance was made. It cannot be believed, that the,insured would have paid a premium for thirty days, in order to have the boat insured, during a period of less than fifteen days. If the risk bad been intended to be postponed, until the’condition was performed, no premium could have been taken for the time necessary to do so.

The condition imposed on the insured the obligation of repairing the boat, before she was exposed to the perils of navigation. In the meanwhile, any risk resulting aliunde, as from fire, were covered by the policy. As but four days expired, between that on which the obligation to repair was incurred, and the storm, during which she sunk, it is clear that no laches can be imputed to the insured.

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