author: Spoffokd, J.

text:
    T. Whaley v. J. S. Houston.
    This action was against the drawers of a draft; one of the grounds of defence was, that it had not been properly presented for acceptance. The notary certified that he “had presented the draft to a clerk of the drawees at their office, the drawers not being in, and demanded acceptance thereof, and was answered that the same would not be accepted.” Held: That this was a sufficient presentment, the defendants being merchants, having a counting room in New Orleans. Reid, alsor That it i? questionable whether the drawer was entitled to notice, as he had no funds in the hands of drawees, and it did not conclusively appear that the agreement with them was such as to authorize the drawer to accept an acceptance.
    If the day on which a draft should, by its terms, be presented comes on Sunday, it may be presented on the day previous. The court should take notice of the fact, that the date of its maturity is Sunday.
    APPEAL from the District Court of Bienville, Drew, J.

      J3. J. II. Jones, for plaintiff and appellant.

      II Gran/, for defendant.
   Spoffokd, J.

The plaintiff has appealed from a judgment in favor of the defendant, who was sued as the drawer of a bill of exchange upon Messrs. Thornhill & Go., New Orleans, dated July 13th, 1883, and payable nine months after date to D. N. Downing, or order, for the sum of $795 92.

The bill was protested on the 2Tth September, 1853, for non-acceptance, and on the 15th of April, 1854, for non-payment, and notices of both protests duly forwarded to the drawer.

On no ground assigned by the appellee’s counsel in his brief, can the judgment of the District Court be sustained.

He urges that the presentation for acceptance was defective. The drawees were a firm of commission merchants, and cotton factors in New Orleans. Their business residence was of course their office, and that was the fittest place at which to present commercial paper drawn upon them in the course of their business. The notary certifies that he “ presented the draft to a cleric of the drawees at their office, said drawees not being in, and demanded acceptance thereof, and was answered that the same would not be accepted." If a presentment for acceptance were necessary, this was sufficient, especially as the authority of the cleric to make the response he did, is recognized by Thorn-hill, one of tbe firm, whose testimony is in the record.

The District Judge excluded all the evidence, which is ample, of a demand and protest for non-payment, because the protest was made on tho 15th of April, 1854, when it should have been made on the 16th, unless that were a holiday, of which no proof was offered. The plaintiff took a bill of exceptions. The ruling was evidently erroneous. The Judge should have taken notice of the fact, that the 16th of April, 1854, fell on a Sunday,

Although abundant diligence has thus been shown on the part of the successive holders of the bill, -whose good faith is not impeached by evidence, and is therefore presumed, it is very questionable whether the claim was entitled to any notices of protest. He had no funds in the hands of the drawees, and his agreement with them is not conclusively shown to have been such as to authorize him to expect an acceptance under the state of affairs brought about by the mode in which he disposed of his drafts on Thornhill & Go.

It is, therefore, ordered, that the judgment of the District Covrt be avoided and reversed. And it is now ordered, adjudged and decreed, that the plaintiff recover of the defendant, the sum of seven hundred and ninety-five dollars and ninety-two cents, with five per cent interest thereon, from the 27th of September, 1853, until paid, and five dollars costs of protest, and. the costs of suit in both courts»


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Cullen Edwards, Executor, v. H. C. Glasson et al.
    Ijl the absence of a special warranty against a particular redhibitory vice, the knowledge of Its existence on the part of the vendor at the time of the sale, although nothing was said' on the subject, will protect the vendor from liability.
    j^PPEAL from the District Court of Union,Bieha/ndson, J.
   Merrick, C. J.

The defendants are sued- upon a prommissory note. They defend the action on the ground that the note was given as the price of a slave-which was subject to the redhibitory vice of running away. The case was-tried by a jury, who found- a verdict for the plaintiff, and- the defendants appealed.

On looking into the evidence, we do not find- that the vice- of running away was decla/ved to the defendant at the sale, but there is abundant evidence from? which the jury might infer, that he knew the vice existed at the time, although-nothing was said on the subject "We think in the absence of a special warranty against the vice, that it is sufficient to show that the vendee knew that the vice existed, and that he was in fact in possession of all the information-on the subject, which the vendor himself could-communicate.

We cannot, therefore, say that the jurry erred.

This is not a case for damages as for a frivolous appeal.

It is ordered, adjudged and decreed By the court, that the judgment off the lower court be affirmedj with costs.


author: Cole, J.

text:
    Frank Taylor v. Simpson, Sheriff, et al.
    Where the sale of specific property alleged to liave been seized under execution is informal, and there bad in fact been no sign of the property, it was error in the court below in dissolving the injunction to allow special damages.
    The curator acZ hoc appointed to represent several defendants, is only entitled to the simple tax fee of ten dollars, unless he has made application on proof, to have the allowance increased in proportion to the services rendered.
    APPEAL from the District Court of Caddo, Oresstoell, J.

      Land <& Winans, for plaintiff and appellant.

      B. Jones, for defendant
   Cole, J.

Some of the judgment creditors of one Broolcs, caused a fi. fa. to issue against his property; plaintiff sued out an Injunction, in which he represents that they had seized 1280 acres of land belonging to him, and within the Grappe reservation, and would proceed to sell the same, unless enjoined.

The Sheriff and said judgment creditors in their answer, expressly disclaim any seizure of the property claimed by plaintiff, and any advertisement of said land under the seizure made at the suit of Daniels et als. v. J. Brooks, and pray that the injunction be dismissed.

Plaintiff has failed to establish, as alleged in his petition, that his land was ever seized.

On the trial in the lower court, plaintiff took a bill of exceptions to the ruling of the Judge a quo, who refused to permit him to prove, by Boland Jones, that Daniels, one of the defendants, “ claimed the land in controversy as the property of Broolcs, and subject to the satisfaction of the judgment in the suit of Daniels et ais. v. Broolcs, and also that said witness had advised said Daniels, as his counsel, that said land was subject to be seized and sold under the fi. fa. issued in said judgment.

We think the Judge a quo did not err in deciding that the testimony offered was irrelevant and immaterial under the pleadings.

Plaintiff avers in his petition, that his land has been already seized and advertised for sale under the said writ of fi. fa. ; and that the said Daniels et als. will proceed to sell under said writ, the said 1280 acres of land, as the property of the judgment debtor Broolcs, unless enjoined from so doing, and he prays for a writ of injunction enjoining them from proceeding to sell said land under said fi. fa., and for judgment declaring said seizure illegal and void, &c.

We are of opinion, that under the prayer of the petition, it was necessary to establish a seizure, and not the intention to seize.

The judgment of the lower court dissolved the injunction, dismissed the suit at plaintiffs’ costs, and decreed that the defendant recover one hundred dollars for special damages proved, for counsel fees of defendant for defending the suit.

This judgment is erroneous in condemning plaintiff to pay one hundred dollars counsel fees as special damages.

The Acts of March 1, 1831 and March 29, 1833, allow special damages on the dissolution of an injunction, only when the execution of a judgment is enjoined, and not when, as in this case, the sale of specific property, which has not been seized, is exhibited by injunction.

Roland Jones, curator ad hoc for the absent defendants, M. P. Robbins, 7F S. Ashe, F. W. Risque, J. P. Brown, F Brown, and A. J. Be Rosset, Jr., has prayed in this court to have the judgment amended by allowing him a fee of ten dollars for defending each one of the six absent defendants aforesaid, making sixty dollars in all; and that thejsame be ordered to be taxed as a part of the costs of this suit, under the Act of the Legislature of 1867, p. 84, No. 108.

We interpret this Act to mean, that a fee of ten dollars is all that the curator or attorney ad hoe is entitled to, rvithout respect to the number of defendants, unless he has made application and proof to the court, to have the amount increased in proportion to the services rendered.

The first section authorizes the appointment of curators ad hoe, and attorneys ad hoc, by the Clerks of the District Courts out of the parish of Orleans, when the Judge of the District is absent from the parish, to represent absent defendants in any case before the court; and section 2 provides, that attorneys thus appointed shall be entitled to the sum of ten dollars, as a fee, to he taxed as costs, which, upon application and proof to the court,, may he increased in proportion to the services rendered.

It is, therefore, ordered, adjudged and decreed, that the part of the judgment which dissolves the injunction at plaintiff’s costs be affirmed; that the part which condemns plaintiff to pay defendants one hundred dollars for special damages for council fees, be avoided and reversed. It is further ordored, adjudged and decreed, that the judgment be so amended, as to allow Roland Jones ten dollars, to he taxed as part of the costs of the lower court; and that plaintiff pay the costs of the lower court, and defendants and appellees pay those of appeal.


text:
    G. B. Alexander v. M. D. C. Alexander.
    One who is clerk and also in partnership in a particular business with his employer, may, where his duties as clerk and partner are distinct, sue for his salary due him in the former capacity, without resorting to a suit for the settlement of the partnership transactions.
    A married man may serve his wife in her executorial capacity, for a debt due him by the testator. The institution of the suit by the husband will be considered as an authority to her to be sued.
    APPEAL from the District Court of Caddo, Gresswell, J.

      Land & Williamson, for plaintiff.

      O. M. Nutt and H. A. Bruid, for defendant and appellant.
   Cole, J.

This is to recover $7,200, the aggregate amount alleged to be due for the salary of plaintiff for six years, and $800 amount of hire of a slave belonging to him.

Plaintiff avers that he acted as clerk and general agent of one Br. Samuel Bennett, from September, 1847, to the time of his decease, in September, 1868, a period of six years; that his services were reasonably worth $1,200 per annum, and that said Bennett received during said six years, hire for a slave of petitioners to the amount of three hundred dollars, making a total sum of $7,600 due plaintiff; that said Bennett left his testament, in which he made Mary B. G. Alexander, wife of petitioner, one of his testamentary heirs, and also appointed her executrix of his will.

Defendant sets up a general denial; also, alleges a verbal contract of partnership in the ice and butchery business, between plaintiff, his brother and Dr. Bennett; that the enterprise failed, and plaintiff seeks now to obtain an advantage from the circumstances of defendant — pleads the prescription of one, three, five and ten years ; excepts to the right of plaintiff to sue her, because of their relation as husband and wife; and that plaintiff is indebted to the succession of Bennett in the sum of $2,715, which is plead in reconvention and compensation.

In an amended answer, defendant pleads the indebtedness of plaintiff in various sums to Bennett's succession, and a further indebtedness for monies collected and unaccounted for, and for notes had in his possession, to be returned by order of court, or their amounts to be paid over to her; and lastly, she pleads a peremptory exception, that the plaintiff, his brother and the testator were partners in an ice and beef business, and that plaintiff’s demand should have been for a settlement of the partnership affairs. This exception, by consent of parties, was ordered to stand as part of the answer.

It is admitted, that the plaintiff and defendant are not now, nor have they, since the death of Dr. Bennett, been living together as husband and wife.

There was judgment for $4,800, and defendant has appealed.

The peremptory exception, that plaintiff should have sued for a settlement of the partnership affairs, instead of instituting this process, cannot be maintained ; the duties of plaintiff as clerk and general agent, wore totally distinct from those as partner in the ice and beef business ; his claim for salary in those capacities, has nothing to do with the settlement of the partnership.

Another exception of defendant was, that she is the universal legatee of all the property left by Samuel Bennett in the State of Louisiana; she is the actual party in interest in this suit, and that plaintiff cannot maintain any action against her, except for separation from bed and board, and settlement of the community of acquets and gains.

¥e consider that this exception is not well taken for the following reasons : She is sued in her capacity of executrix; - the rights of husband and wife are not so entirely merged by our laws, as to prevent the husband from suing his wife in a representative capacity for claims due by a deceased person, whose estate she administers as executrix.

There is no law which prohibits the husband from instituting such a suit, and ex necessitate rei, the action must lie to prevent a failure of justice.

She is authorized by her husband to stand in judgment, by the mere institution of the action, for he cannot be supposed to sue her, -without also intending that she shall be capable of standing in judgment.

There was also an order of court, authorizing her to stand in judgment.

Besides, there is nothing due the wife as legatee, until all the debts are paid.

This exception was then properly overruled by the lower court.

No proof was offered to establish the indebtedness of plaintiff to Bennett’s estate, nor of any sum due by way of reconvention, compensation, or otherwise ; and plaintiff also failed to prove the receipt of $800 by Dr. Bennett for the hire of his slave.

There is no plea of payment and no testimony to show that any salary was ever paid to plaintiff, so that the sole questions remaining are: Whether plaintiff was employed by Bennett; in what capacity; the value of his services, and the plea of prescription.

The evidence fully establishes that Dr. Bennett was engaged in business of a diversified character; that he was often absent from the parish of his residence ; that plaintiff performed the duties of clerk and general agent for him from September or October 1847, till his death in 1853. He attended his store; he superintended warehouses on both sides of the river; collected notes and other claims due Bennett, in connection with the business of J. U. Oaine & Go., and Samuel Bennett as successor ; he represented Bennett as agent, in buying and selling in the multifarious and curious transactions in which he had an interest.

The lower court considered his services as general agent and clerk, worth a thousand dollars per year; that the plea of prescription must prevail as to the compensation due the plaintiff, as a clerk, from September or October, 1847, for the three years following, and for that time deducted $400 per annum, the usual salary at that time, according to the evidence, for a clerk in a house of limited business, which left $600 per year for salary as general agent. For the next three years the District Judge thought there was a sufficient acknowledgement of the debt due plaintiff to interrupt the prescription applicable to clerks, and that consequently he is entitled to the whole amount due as clerk and general agent, from September, 1850, although a small part thereof was prescribed.

We are of opinion, that the acknowledgment by Bennett, of a specific sum due plaintiff, is not sufficiently established by the evidence to arrest prescription.

It is also argued by plaintiff, that a continuity of services prevents prescription against claims for wages of a clerk.

It is true that it has so been decided (vide Pressas v. Mendiburn, 4 Martin, 129) but we are of opinion that a continuity of services as clerk does not arrest the prescription of three years ; the contrary doctrine seems to have been overruled. Vide Cresap v. Winter, 14 L. R. 554.

Although we are of opinion that the District Judge erred in deciding, that the prescription of three years was arrested for a part of the time, yet we are not disposed to interfere with the judgment; for there is sufficient evidence of the value of the services in the record to justify the judgment, oven if the time that is prescribed after the termination of three years from 1847, is considered ; besides, it appears from the evidence that defendant is the reputed natural daughter of Bennett, and when a brother of plaintiff went to him for a settlement, Bennett told him: “That plaintiff wished to draw the money which he owed him, but that he thought plaintiff in this suit ought to let the money remain, and intimated, that all of his, Bennett's property, would eventually belong to plaintiff and his wife, and wished witness to advise his brother (the plaintiff) not to draw out his salary, and admitted that he owed plaintiff his salary for his services, and that the same was due and unpaid, and said that he (Bennett) would pay him liberally for his services, but wished him to wait for it.”

In his will, he bequeaths nothing whatever to plaintiff, and the wife of plaintiff has been living separate from him since the death of Dr. Bennett.

It is very evident, that plaintiff did not insist on a settlement on account of having married the reputed natural child of Dr. Bennett, and of the expectation that Bennett would remember him in his will.

Under all the circumstances of this case, we do not feel justified in interfering with the judgment.

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


author: Lea, J.

text:
    Succession of J. L. Wilson.
    The creditors of the succession of TT. opposed the homologation of the administrator’s account on several grounds, the principal one of which was, that the administrator had not enjoined an order of seizure and sale of a large portion of the property, when the claim on which it issued was tainted with usury. Held: That W, in his life-time had resisted the claim on that plea which had been decided adversely to him, and that it would not have been proper for the administrator again to set up the same defence.

    APPEAL from the District Court of Ouachita, Biehardson, J.

      J. Gv/nett, for the administrator.

      McGuire & Bay, for opponents and appellants.

       Judgment rendered, April, IS57.

   Lea, J.

John L. Wilson died in August, 1852, leaving- a widow and four minor children. The widow renounced the community. The children are by operation of law, beneficiary heirs. J. H. Wilson was appointed administrator of the succession. In September of the same year, an inventory was made, and in November, 1853, the administrator filed his account.

Oppositions were filed by K. Clore, K. Kendall, Garter & Go., G. G. Moore, Wyehe & Bamwnet, and Dedk & Athin, all judgment creditors. The widow of the deceased also filed an opposition. There was judgment homologating the account with the exception of one immaterial item. Prom this judgment Garter & Go., Moore, Glore and Wyehe & Kammet, have appealed.

The' elaborate and thorough review made by the District Judge of the facts put at issue on the pleadings and of the law applicable to the facts, relieves us from the necessity of making a detailed statement of the case, and we would consider it sufficient to refer to the opinion of the District Judge as conclusive upon the matters in issue, but for the fact that certain legal questions have been pressed upon the consideration of this court, which were not set forth in the pleading's, and which are now urged in the arguments of the counsel for the appellants as grounds for the reversal of the judgment appealed from.

The administrator shows that he had been divested by legal proceedings, on the nature of an order of seizure and sale of a large portion of the property of the succession. It appears that the plantation and slaves of the deceased were seized and sold in virtue of an executory process obtained by K.B. W.Kill, andtheproceeds applied to the payment of the mortgage debt due to Kill, amounting to $27,628 81. It is contended that the administrator was guilty of neglect in not opposing this sale; that a part of the debt had been paid; that an injunction might have been obtained and maintained; that a large portion of the demand was tainted with usury, and that under any circumstances the proceeds should have been brought into court and distributed under its orders, after due notice to creditors. It is further urged, that the estate being insolvent, a meeting of creditors should have been called to advise upon the terms of the sale of the property belonging to the succession.

If Hill was a mortgage creditor and was entitled under the law to an order gale, wo no^ perceive how a meeting of creditors could have affected that right, and even admitting that there were irregularities in the sale, (which nothing in the record displays,) it would be necessary for the party complaining to show, that some injury has resulted from such irregularities, before he could hold the administrator liable in damages. The sale appears to have been made at a fair price, and, under the circumstances, the only question which we can entertain, is one affecting the proceeds, or a liability to account for the same.

We think it was not competent for the administrator, under the circumstances, as the representative of creditors, to have obtained an injunction on the ground of usury. An injunction involving the same matter of defence had been obtained by Wilson himself, and had been abandoned by him after a litigation which was terminated by a judgment in favor of Hill. That judgment was binding upon his succession and constituted res judicata as between Hill and the administrator. It is urged, however, that the administrator should account for the proceeds, precisely in the same manner as if they had been realized upon a sale made at the instance of the administrator himself.

A tableau of distribution, by its very name, implies a control of the fund to be distributed. If the administrator has a larger fund in hand than he proposes to distribute, this fact constitutes a legitimate ground of opposition. If by his neglect he has failed to realize funds which he ought to have in hand, this fact also may be urged by way of opposition.

In the case at bar, it is not pretended that the administrator actually received the price for which the plantation sold, and unless it can be shown that at the time of the sale there existed a valid defence to the action, which was known to the administrator, and of which he neglected to avail himself, it is impossible for us to imagine upon what legal or equitable grounds he can be made personally liable for the proceeds of the sale.

It does not appear from the evidence, that the grounds of opposition now set up by the opposing creditors, even assuming their validity, were known to the administrator. It has been held in the case of Boguell v. Faille, 1 An. 204, that a creditor having a special mortgage importing a confession of judgment, may obtain an order from a court of ordinary jurisdiction, for the seizure and sale of the hypothecated property, though the mortgagor afterwards died and his succession had been accepted by the heirs with benefit of inventory.

The effect of such a proceeding is necessarily to divest the administrator of his possession, and place it in the hands of the Sheriff. We concur with the District Judge, that there is nothing disclosed by the evidence which brings home to the administrator a neglect of duty, or which made it incumbent upon him to encumber the succession with costs, to be incurred in a fruitless litigation. We do not think that the portion of Hill's claim, which was paid by Williams, Philips & Go., was extinguished by such payment, as it was made under an existing contract of subrogation.

Lastly, it is urged that the notes and mortgage having been merged in a judgment, they became extinguished by novation, though it is admitted that the judgment itself decrees that the mortgage shall remain in force to secure the payment of the judgment. If this doctrine were correct, the highest possible recognition of a right would virtually extinguish it.

Vo shall not attempt any further analysis of the complicated issues pre* sented in the pleadings and pressed upon us in the arguments of counsel. We refer to the opinion of the District Judge, as containing a careful and lucid statement of the facts, and a sound exposition of the law.

It is ordered, that the judgment be affirmed, and that the transcript of appeal, together with this decree, he forwarded to Monroe, to he there proceeded in according to law.


text:
    State v. Slave King.
    The accused, a slave, was prosecuted under the 6th Section of the Act of 1843, and convicted of stabbing, with intent to kill one Smith, a white man. The Act under which he was indicted, was re-enacted in 1855. ( See Act, p. 50, Sec. 4.) The same Statute was re-enacted verbatim, by the Act of 19th March, 1857. By Section 43, of the latter Act, it was declared “ That all laws, or parts of laws, conflicting with the provisions of this Act, and all laws on the same subject matter, except what is contained in the Civil Code, or Code of Practice, be repealed, and that this Act shall take «ffect'from its passage.” (Acts of 1857, p. 284, Sec. IS. ) The crime charged, was alleged to have been committed anterior to the passage of the Act of 1857. Held, That the Statute, under which the Slave was prosecuted, was repealed by the Statute of 1857, and that the rule of law is, that when a law is repealed, before the final action of the appellants court, the prosecution must be dismissed.
    In construing penal Statutes, courts cannot take into view the motives of the law-giver, further than they are expressed in the Statute.
    Where a Statute re-enacts a law, and repeals all other laws upon the same subject matter, theformer laws will be considered as suspended. The promulgation of the re-enacted law, and the repealing provision at the same time, will not have the effect to continue the old law in force, until the new law goes into operation.
    APPEAL from a Justice’s Court of the Parish of Morehouse.

      F. P. Stubbs, Distriet Attorney, for the State.

      O. F. Morrison, for defendant.
   Cole, J.

The slave, King, having been found guilty of stabbing one Flias F Smith, a white man, with intent to kill, was sentenced to he hung, and has appealed.

The judgment must be reversed, for the following reasons:

This prosecution is under the 6th Section of the Act of 1848, p. 92, reenacted in 1885, R. S. p. 50, Sec. 4.

The same Statute is reenacted verbatim, by the Act of 19th of March 1857, and Section 43, of this last Act, declares, “ That all laws or parts of laws, conflicting with the provisions of this Act, and all laws on the same subject-matter, except what is contained in the Civil Code, or Code of Practice, be repealed, and that this Act shall take effect from and after its passage.” Vide Acts of 1857, p. 234, Sec. 43.

The alleged illegal act of this slave, was committed anterior to the passage of the said Act of 1857, and by the repealing clause therein, all Statutes, relative to the crimes of slaves, were repealed.

Appellant has then boon prosecuted and found guilty under a Statute, which has ceased to exist, and the general rale of law is, that when a law Is repealed, before the final action of the appellate court, the jrrosecution must bo dismissed.

In 12 L. 547, State of Louisiana v. Johnson, et al, Martin, J., says : “It is true that when an act creating an offence is repealed, even after judgment in the inferior court, the judgment must be reversed, if it has not been affirmed before the repeal The reason, of tills is,, that a Legislative pardon is presumed to have boon intended. It is otherwise when the remedy only, is changed.”

The Legislature has given its sanction to this judicial interpretation, by Sec. 127, of the Act relative to crimes and offences, p. 134, R. S. “ This Act shall not operate as a discontinuance of any prosecution already commenced, nor as a bar to prosecutions for offences committed against any law in existence, at the passage of this Act.”

This section would not have been enacted, if the Legislature had not believed that it was necessaiy, in order to give authority to courts to act on prosecutions commenced under the Statutes, that were repealed by this Act.

Besides, as the offence is charged to have been committed anterior to the Act of 19th of March, 1857, its prosecution is now barred by the prohibitions relative to ex post facto laws, in the Constitution of Louisiana, Art. 105, and in that of the Constitution of the United States, Sec. 9.

The Civil Code, Art. 8, declares, “A law can prescribe only for the future.”

It is a well recognised doctrine, that laws regulating the form of judicial proceedings, relate to the remedy, and where, before a final decision, a new law changes the form, it must take effect at once, unless it expressly declares, that the preexisting form shall continue to be followed in cases then pending. Scott v. Dulce, 3 A., 253-093.

A fortiori, if the law is repealed, prosecutions under it must at once cease. Vide State v. Johnson, 12 L. 547; Arnaud v. Executors, 3 L. 337; Bouvier’s Law Dictionary verbo Repeal, and the cases there cited; Curtis’ Digest of Decisions in the Courts of Common Law and Admiralty, 3 vol., p. 77.

It is urged by the District Attorney, that the reenactment verbatim of the former law, cannot be construed into a repeal, and that the repealing clause was only intended to repeal all laws inconsistent with this, and to revive and simplify the Statutes then in force on the subject.

Nothing would be more dangerous to the liberties of the people, than that courts should consider as the law, not Statutes in actual existence, but the motives of the Legislature.

If such was the rule, there would then be no certainty in the administration of justice: different courts would vary as to the motives of the sovereign power ; in one part of the State, particular actions would be viewed and punished as crimes, and in other parts, they would bo justified.

Judicial tribunals derive their power of condemnation from the Legislature, and have no more right to condemn without authorization of law, than any private individual.

Personal rights would never be secure, if courts were guided by a desire to punish and prevent crimes, without regard to the law and the legal power.

It is also argued by the District Attorney, that the reenactment and repeal, were in the same Statute, and when the Statute embracing them was approved by the Governor) and duly promulgated, they then became the law at the same moment, and there was no space of time, which elapsed between the enactment of the new and the repeal of the old law.

This may be true, but the repeal caused the old law to cease its existence: the old law had a being up to the moment of its repeal by the new Statute ; after this, it was blotted, from the statute book, and was without life or effect; how then can a prosecution which was commenced under the old law, before its repeal, be now conducted under it, when it is without vitality; how can this court punish by virtue of a dead Statute ?

The reenactment of a Statute communicates life and vitality-to it from the time the reenactment goes into effect, and the repeal of a Statute takes away all its life, vitality and effect, from the passage and promulgation of the Act in which it is contained.

If this new Statute merely provided a ehange of the mode of procedure in the trial of slaves, and had not provided that prosecutions already commenced under the old mode, should be carried on to their end, then the new law would only cause the prosecutions begun under the ancient mode to cease, and prosecutions could be again instituted under the new mode, unless barred by prescription or some legal cause.

But in the case at bar, the law itself has been repealed, which denounces as a crime, the alleged aet of appellant.

Ve regret to be obliged to set the prisoner at liberty, but it is far wiser and safer for society, and the rights of the citizen to allow him to be liberated, than to violate a great principle in the interpretation of Statutes, which has had the sanction of the most learned and enlightened members of the judiciary.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury, and the judgment of the lower court, be avoided and reversed, and it is further ordered, adjudged and decreed, that the prosecution be dismissed, and the prisoner and appellant be discharged.

Spoffoiíd, J., Concurring. I concur in the conclusion that the repeal of a penal Statute, pending a prosecution under it, without a saving clause, puts an end to the prosecution, although the penal Statute may uno flalm with the repeal, be substantially reenacted. Such is the current of English and American authority, by which, in criminal matters, we must bo guided.

The reasoning in the case of Holmes v. Wiltz, 11 Ann., was predicated upon a civil case where doubt hung over the true construction and meaning of a Legislative Act; and to ascertain that moaning, we held ourselves at liberty to look at the history of the legislation upon its subject-matter, the mischief which was sought to be remedied, and the mode of remedy which the Legislature had avowedly adopted. The “Revised Statutes” were finished and published before the Act of March 18th, 1857, was passed. This Act stands alone to be interpreted by its own language. It is a criminal Statute, and must be construed strictly. It declares (Sec. 2, p. 229, ) “ That any slave who shall, with a dangerous weapon, and with intent to kill, cut, or otherwise wound any person, or who shall attempt maliciously to kill by drowning or strangling, on conviction thereof, shall suffer death.”

“ Sec. 4. That if a slave shall shoot at, or stab any person with intent to kill, such slave, on conviction of either of such offences, shall suffer death.”

The same Act (Sec. 43, p. 234,) declares “That all laws conflicting with the provisions of this Act, and, all laws on the same suhjeet-matter ***** be repealed.”

It is charged that the slave, King, on the 13th of August, 1854, with a dangerous weapon, called a butcher-knife, did cut, stab and wound, one Elias F. Smith, with intent to kill. The laws upon thissubject, in force at the time of the alleged offence, and which alone he could be charged with having violated, wove the Acts of 1816 and 1843. “If any slave shall shoot at, or stab any person, with an intent to kill him or her, such slave, on conviction of either of said of-fences, shall suffer death: provided, always, that the presumption as to the intent, shall bo against such slave, unless he prove the contrary.” “Any slave, who shall, with a dangerous weapon, and with intent to kill, cut or otherwise-wound any person, or who shall attempt, maliciously, to kill by drowning or strangling, on due conviction thereof, shall suffer death.” Pierce, Taylor and King’s Digest, 543. These laws are upon the same subject-matter, as the Sections two and four, of the Act of 1857, and being repealed without any saving clause, the prisoner accused under them, must be discharged without delay.


text:
    State v. McKeown.
    It is not a sufficient reason to dismiss an appeal, u that the appeal was asked and granted, and the appeal bond given and approved before the judgment was signed, and at a time when there was no legal judgment thereon,” for it is usual in the country to apply for an appeal before the judgment is signed. The appeal is considered as taken nwioprotunQ.

    The insertion of the name of the former instead of the present executive, as the obligee of a bail bond, will be regarded as a mistake, and will not vitiate the bond.
    "Where the Sheriff takes an illegal bail bond, he may abandon it and take another bond.
    It cannot be objected to the validity of an appearance bond, that it was taken without authority, where it appears that the Sheriff accepted the bond, and that he was authorized to take and approve it by the court.
    APPEAL from the District Court of Bossier, Drew, J.

      J. D. Wathins, District Attorney, for the State.

      B. L. Hodge, for defendant.
   Cole, J.

This appeal is taken by McHeown, as principal, and Vance & Spyher, as his securities, from a judgment against them in solido, for five thousand dollars, the amount of a bail bond given by said principal for his appearance to stand his trial on an indictment for manslaughter, before the District Court in the parish of Bossier.

The District Attorney has moved to dismiss the appeal on the ground, “ that the appeal was asked and granted, and the appeal bond given and approved before the judgment was signed, and at a time there was no legal judgment thereon.”

Wo are of opinion, that this motion ought not to prevail. It is usual in the country to apply for an appeal before the judgment is signed. The appeal is considered as being taken nune pro tunc.

The first ground on which appellants rely for a reversal of the judgment, is the refusal of the lower court to permit them to prove the allegations of their answer, filed on the 4th of March, 1857, for the reason, that the matter therein contained had been previously adjudicated by the court between the parties in the motion of defendant filed on the 3d of December, 1856.

The lower court appears to have considered the motion of December 3d, as an answer. It is in these words:

“ And now comes the defendant by his attorney, and moves the court to set aside the bond in this case, because the instrument purporting to be the bond of defendant on file in this case, dated 5th September, 1856, is made pajmble to Paul O. Hebert, and not the proper authority representing the State of Louisiana.”
“Wherefore he prays, that said bond be set aside and cancelled, and for general relief,” &c.

The following order of court appears on the minutes of the court:

“ Motion to set aside bond, tried and overruled, and bond sustained.”

The lower court was of opinion, that the objections to the bond in the second, or amended answer, had been substantially considered on the first motion; and refused to enter again into a consideration of its invalidity. An examination of the reasons alleged in the second answer, induces the belief that the Judge a quo did not err; besides, it is probable, that the additional reasons urged, had been verbally passed on the trial of the first motion. But, even supposing that the second motion ought to have been examined by the lower court, we can find nothing therein, which would justify a reversal of the judgment.

The first objection in the second motion to the bond is:

“ Because the instrument purporting to be the bond, is not made payable to any person, who at the time was acting as Governor of the State of Louisiana, nor is it payable to the Governor of the State of Louisiana, but simply to an individual.”

The insertion of “Paul O. Hebert” instead of “if. C. Wiehliffe,” is a mere clerical error of the Sheriff, who used probably a blank bond printed while Hebert was Governor, and omitted to change the name.

The bond clearly shows that it is payable to the Governor of the State of Louisiana; a mere mistake in the name of the acting executive cannot vitiate it.

The second objection is:

“Because the defendant, Charles & MeKeown, was already under arrest for the same offence charged, and the Sheriff had no right to make a second arrest, or take a second bond.”

Appellant does not aver whether the bond sued on is the first or second one. But supposing the Sheriff had taken a bond which was illegal, he had the right to abandon the first and to execute a second one; because his duty was to accept none but a legal bond, and the first being void from its illegality, must be considered as not having been taken.

The third objection is:

“ That the said instrument is generally defective and invalid in law, being taken without authority, and being made payable to improper parties.”

The last clause of this point is embodied in the first objection. The answer to the first part is found in the following order of court granted after the presentation of the indictment:

“ Whereupon, it is ordered by the court, that process issue thereon immediately, and that the appearance bond of the defendant be fixed at the sum of §5,000, and that the Sheriff of the parish of Bossier, or any of his deputies, be authorized to take and approve the bail bond of the defendant in this cause.”

The Sheriff of Bossier afterwards arrested McKeoum, and he accepted the bond now sued on.

The bond was then taken by the Sheriff, who was authorized by the court to receive it, and the third objection is without force.

The last point is :

“Defendants deny generally any indebtedness to the State of Louisiana.”

This is too general in its character, and besides is contradicted by the premises.

The Disti’ict Judge considered that nothing' was averred in the second answer, which had not been substantially disposed of in the first, and wo think he did not err.

Even, then, if defendants ought to have been heard on their second motion in the lower court, as we consider there is nothing- therein which could cause a reversal of tho judgment, it would be unnecessary to remand the cause.

It is also objected, that the lower court erred in giving judgment for the State, because there was no evidence offered to justify the judgment.

The evidence in the record conjoined with the bill of exceptions and answer of defendant were sufficient to justify the judgment on the bond. The judicial averments of defendants, showed that the bond had been executed; and it is evident from the judgment and other parts of the records, that the bond was in evidence and before the court when the judgment was rendered.

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


author: Spoitord, J.

text:
    Editha W. Clark, v. A. T. Norwood.
    Where a wife in community takes the title to immoveable property in her own name, she must clearly show that it was paid for with her separate funds to rescue it from the community.
    APPEAL from the District Court of Ouachita, Richardson, J.'

      J. D. & J. MoEnery, for plaintiff and appellant.

      O. IL Morrisson and Ralcer & Harris, for defendant.
   Spoitord, J.

The plaintiff seeks to enjoin the sale of certain slaves seized by order of the judgment creditors of the husband. She asserts that the slaves are her paraphernal property, not subject to seizure for her husband’s debts.

The slaves were purchased in tho name of the wife pending the existence of a partnership of acquésts and gain between her and her husband. Indeed she does not appear to have had the control and administration of a separate estate, as she petitioned for a divorce and dissolution of the community about the time the seizure in question was made.

The community “ consists of the profits of all the effects of which tho husband has the administration and enjoyment, either of right or in fact, of tho produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by donations, made jointly to them both, or by purchases, or in any other similar way, even although the purchase he only in the name of one of the two, and not ofhot\ because in that case the period of time when, thepurrehase is made, is alone attended to, and not the person who made the purchase.” O. C. 2371. There being then a legal presumption that the slaves now in dispute are community property, and as such, liable to seizure for the husband’s debts, it was incumbent upon the plaintiff, who asserts a separate right to the property, to make strict proof thereof. Ford v. Ford, et. al., 1 La., 206; Fisher v. Gordy, 2 Ann., 762.

The case thus resolves itself into a question concerning the sufficiency of the proof adduced by plaintiff. We are not prepared to say that the District Judge erred in considering that the plaintiff had failed to make out her case with the certainty which the law requires. The hire of her negroes is not shown to have constituted a paraphernal fund ; her commissions as administratrix fell into the community. The mode in which she paid, if indeed she has paid, the ILcFall note to Glyme's Succession, is not sufficiently explained. When a wife in community takes the title to immovable property in her own name, she must clearly show that it was paid for with her separate funds to rescue it from the community.

We do not think this a case in which the amendment prayed for by the appellee, should be allowed.

Judgment affirmed.


author: Merrick, O. J.

text:
    J. C. Clement v. J. T. Wafer et. al.
    A married woman is responsible cimliler for her wrongful acts, even when done in the presence of her husband.
    Plaintiff objected to defendants filing an amended answer. Held: That he was properly allowed to do so. The matters set up in it having an important bearing on the merits of the case.
    The marriage of a minor, and domicilled in Louisiana, contracted in another State, in fraud of our laws, does not emancipate the minor, and her tutor cannot be held responsible for affording shelter and protection to his ward, and even counselling her in her difficulties.
    A person who, without the consent of the tutor, pursuades a minor to elope with, and marry him, in fraud of our laws, acquires no right to administer her estate, and, perhaps, no right to her person and to her society, except, so far as voluntarily yielded to him.
    Granting leave to defendants who have been joined’in an action for damages, to have separate trials, rests in the discretion of the Judge who tries the case.
    Alleged co-trespassers, who have been sued in another Parish for the same cause of action, may be received to testify on behalf of a defendant charged also, as a co-trespasser; his position may possibly affect his credibility, but not his competency.
    This was an action for damages. The jury found for the defendant; although the court did not consider the defendant free from blame, yet, in affirming the verdict, much stress is laid on the fact that plaintiff had not only acted in a manner grossly improper, but in palpable violation of law.
    APPEAL from the District Court of Claiborne, Frew, J.

      J. M. Thomasson, for plaintiff and appellant.

      E. 3. Jones and 3. Gray, for defendants.
   Merrick, O. J.

“ In his petition, filed Nov. 1855, plaintiff alleges that, on the 11th Sept. 1855, he was lawfully married in the State of Arkansas, to San'ah A. T. Waf&r.

“ That soon after his said marriage, J. T. Wafer, Jr., and Mcury Oioen, his wife, J. F. Owen and L. F. B. Bennolds, all of Claiborne; and J. W. Sim mons and Louisa Wafer, his wife, Margaret Wafer, and Oicily Wafer, wife of J. W. Dabbs, all of Bossier Parish, entered into an agreement and conspiracy to entice, abduct and carry away his (plaintiff’s) wife, and to effect a permanent separation of her from him, so as to forever deprive him of the pleasure and enjoyment of her society and the value of her services.

“That in pursuance of their said conspiracy, defendants, Wafer and Owen, waylaid the road and intercepted him and his wife on their return from Arkansas, after their marriage, seized plaintiff’s horse by the bridle, threw him (plaintiff) from his-buggy on the ground, and, after abusing him, compelled him to go, against his will, to the house of Wafer, &c.

“ That some eight days after, while plaintiff and his wife were living together in connubial affection, Margaret Wafer, one of the conspirators, at the instance of, and by agreement with the others, went to plaintiff’s and represented that Mrs. Simmons, one of his (plaintiff’s) wife’s sisters, was at the house of defendant, Wafer, sick, and wished to see her (Sarah); and, not suspecting their wicked designs, plaintiff assented, and his wife went to Wafers; and that soon as they had, by their false representations and artifices, got his wife away from him, they falsley and maliciously misrepresented his character and prospects to her, and persuaded and enticed her to leave him.

“ That they afterwards took her off to Red River and kept her so confined and guarded, that plaintiff could not have an interview with her; that ho took some of his friends, and went to the house of Dabbs where she was kept, in order, if practicable, to have an interview with her, and get her away from under the pernicious and wicked influences of her abductors; that this visit resulted in an agreement between them all, that Safi-ah was to go in company with friends to the residence of her uncle, Rev. J. T. Wafer, Sr., in Claiborne Parish, and there remain a few days, and under his advice determine her future course — -whether or not she would live with plaintiff; at the end of which time she was to go either with plaintiff or her relations, as she might choose.

“ That, as agreed upon, they came to the house of her uncle, where they were followed by defendants and others, whose purpose was to take Sarah off again, but failing in this, defendant, J. T. Wafer, made affidavit, procured a warrant, and had plaintiff and his friends arrested for kidnapping plaintiff’s wife; and on the next day he made another affidavit, and had a writ of habeas corpus issued by the Eon. II. A. Drew, Judge 17th District, commanding-plaintiff to bring before said Judge, instanter, the body of his wife, &c.: and before plaintiff could do so, at the instance of said Wafer, he was arrested for a contempt of the authority of said Judge.

“ That all of said affidavits were false, and the said proceedings wholly unfounded, malicious and vexatious, and instituted without any probable cause. That by reason of the said slanderous and false accusations and representations, the assault and battery, false imprisonment, abduction, &c., of his wife from him, and, of the said malicious, vexatious and unfounded prosecutions, plaintiff had sustained damages to the amount of §50,000 00, and prayed judgment against those residing in Claiborne Parish, in solido, for $30,000.”

To this petition, defendant excepted,

1st. Because different and distinct defendants are joined for distinct causes of action.

2d. Because defendants have no joint interest in defence of this suit.

8d. Because Mary Owen is a married woman, not alleged to be separate in property, or person, and cannot be made liable for damages; that the acts charged, are charged to have been done in the presence, and by concurrence of her husband, and she is not liable, &c.; and

4th. Because she is not sued on account of any separate right or interest.

. The exceptions being overruled, the defendants answered separately by way of a general denial, and prayed for separate trials. Subsequently, the defendant, James T. Wafer, obtained leave to amend Ms answer. He alleged that, at the time of the pretended marriage, he was the tutor of the said Small A. T. Wafer, an orphan minor, under the age of sixteen years, the sister of respondent, who was under his personal care and protection, and residing with him at his house ; that, by false representations and devices, said plaintiff clandestinely procured the said Sarah A. T. Wafer, the ward of defendant, to accompany him to the State of Arkansas, against the consent and without the knowledge of respondent, where, in fraud and evasion of the laws of Louisiana, the plaintiff endeavored to contract marriage with said Sarah A. T., and immediately returned to Louisiana; that said Sarah was induced to live with him a short time under the impression that the attempted marriage was valid, •when, in fact, it was not so; that plaintiff was aided in the perpretration of his fradulent designs by other persons, between -whom and plaintiff, a conspiracy to bring about said pretended marriage, was engaged in and carried out. The defendant, J. T. Wafer, prayed that if said pretended marriage should be established, that the same be decreed to be null and void ab initio. This answer was severally adopted by each defendant.

A separate trial was allowed J. T. Wafer.

The suit seems to have been most obstinately contested on both sides in the court below, and, after occupying its attention for about three weeks, it resulted in a verdict and judgment in favor of the defendant, from which the plaintiff appeals.

Four hundred and fifty-eight pages of record, and twenty-two bills of exceptions, testify to the industry and zeal of the parties and their counsel.

The scenes of violence which have been detailed by witnesses, seem rather to belong to a remote border settlement, than to the law abiding community, with its magistrates, courts and eminent bar, in the midst of which they occurred. A jury of the vicinage, acquainted with localities and witnesses, has found for the defendant, and the plaintiff, exercising a constitutional right, demands that we shall revise the proceedings of the lower court, the evidence and the finding of the jury, and pronounce upon the legality of the same.

The first question which naturally arises in the case is presented by the defendants’ exception. We think all the charges of abduction, and of enticing away plaintiff’s wife, the alleged malicious misrepresentations, the false imprisonment, slander and assault and battery, are substantially laid in plaintiff’s petition, as done in pursuance and in consequence of a conspiracy among all of the defendants. The petition is not, therefore, obnoxious to the charge that distinct causes of action against different persons are joined in it. A married woman is responsible cimliter under our law for her wrongful acts, even when done in the presence of her husband. Brown, tutor, v. Crocket, 8 Ann. 84. The exceptions were properly overruled.

We discover no error in the allowance of defendants’ amended answer. It did not authorize the defendant to demand a dissolution of the marriage it is true, but matters wore, set up in it having an important bearing upon the merits' of the case, if they were not a complete justification to a portion of plaintiff’s action. As a marriage of a minor domicilled in Louisiana, contracted im another State, in fraud of our laws, does not emancipate such minor, (4 Ann., 375; Babin v. Lablanc, 12 Ann.) the tutor of such minor cannot bo rendered' responsible for affording shelter and protection to his ward, and even counseling her in her difficulties. The person who, without the consent of the tutor,, persuades a minor to elope with him and marry him in fraud of our laws, acquires no right to administer her estate, and perhaps, no right over her person and to her society, except so far as voluntarily yielded him. The amended answer was, therefoi'e, properly received.

The Judge did not err in. awarding a separate trial to- the defendant, James1 T. Wafer.

The Judge, in the exercise of a reasonable discretion, has the power to direct a separate trial as to one or more of the defendants. In this case, the Judge may have suspected, perhaps, that some of the defendants were merely made-parties in order to exclude their testimony, and that the purposes of justice-would be best attained by ordering, first, a trial of the defendant, who was-mainly charged'with an agency in all the transactions. 9 Martin’s Rep., 397 5 N. S., 3G4; 17 L. R., 419.

The court did not err in allowing the testimony of the alleged co-trespassers who had been sued for- the same causes of action in another Parish, to be given* in evidence in favor of the defendants. The plaintiff, by his mere allegations, in another suit, cannot discredit a witness or render him incompetent.- Such-charge may possibly go to his credibility, under some circumstances, but not to his competency;

On the merits of the case, we observe that the plaintiff does not come before' this court in the attitude of a suitor with clean hands. The evidence shows that the plaintiff is a man of mature judgment, being thirty-five or forty years of age; that lie cannot be presumed ignorant, for he belongs to one of the-learned professions; yet, regardless of his position and the duty he owed the’ the laws of" his adopted State, he induced an orphen school girl, hardly grown to womanhood, elandestinely to leave the house of her tutor and accompany him to a neighboring State, and there, in a public highway, caused himself to be married to her by a clergyman who, like himself, was a resident of Louisiana, to the violation of' whose laws,, he also had lent his holy office.

Again we find him with a band of sixteen or seventeen armed men invading the house of a brother-in-law of his bride, to which she had gone, and there, by violence,, compelling a consent that she should accompany him a long distance to another relative; we find him driving away her sisters and relatives, guarding her on the way with sentinels armed with loaded guns, and finally,, in order to evade the process of our courts, sending her, in the night-time with an armed guard, to Arkansas, where she appears also to have been detained, several days before she was finally permitted to return to her friends.

The jury might well suppose that if the wife would not become reconciled to him when she was entirely among his friends, (and in whose company she resolutely persisted in. refusing to live with the plaintiff,) that it was hot probable that she was acting under an improper influence of the defendant who had constantly said that she might live with the plaintiff if she wished.

The conduct of the defendant cannot, in all respects, be commended, but it must bo observed that he was the natural protector of the young lady who had not become emancipated by her marriage, and whoso property, at least, was to remain under his charge as her tutor until her majority. The jury do not seem to have credited the proof tending to establish the alleged assault and battery near Terryville, on the plaintiff’s return from Arkansas, from his fugitive marriage.

We think the court erred in excluding a part of Sandefor's answers to the 9th, 10th, 14th, 15th and l?th interrogatories, but under the view we take of the case, we do not think it -would materially aid the plaintiff’s case wore a new trial to he granted. Moreover, the testimony of Sandefor, has been attacked as unworthy of credit. It is unsustained by counter evidence, and it would be trifling with justice to remand the case upon his testimony upon a point which could have very little or no weight against the present defendant,

.•and the impression created by the consideration of which is insufficient to incline us to set aside the verdict.

In the matter of plaintiff’s arrest, the want of probable cause, has not been ■established.

Upon the whole, wo think that the interest of the public as well as of these parties, requires that there shall he an end of this litigation.

If the plaintiff has failed in his proceedings, he must remember that the minor, as well as any other person, is under the protection of the law, and that his own fraud upon the laws which he now so earnestly invokes, his disregard of The rights of other's, and his armed violence in asserting his supposed rights, as well as the evasion of the process of our courts were not only the primary rand principal causes of the difficulties between himself and the defendant, hut are also circumstances calculated to throw discredit upon his cause.

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


author:
Spohford, J.
      Merrick, O. J.

text:
    Lawson's heirs v. Lawson’s Executors.
    When the law requires certain forms to be observed in the confection of a will, the p arty who relies upon any want thereof,should expressly allege such informality. Merrick C. J. and Cole. J.
    The law does not require in nuncupation testaments by public act, that mention be made in the wilL that it was dictated by the testator to the notary in the presence of the witnesses. It is sufficient if express mention be made that it was dictated by the testator and written by the notary as dictated. Merrick, C. J. and Cole, J.
    It appears by Art. 1571 C. C. that express mention is required to be made, in nuncupation testaments by public act, of the facts that the will was dictated by the testator and written by the notary, as it was dictated — but no such express mention seems to be required of the fact that it was ** written in the presence of the witnesses.” By the next clause of Art. 1871, it appears that the presence of the witnesses when the will is read to the testator, must be expressly mentioned. It would seem to follow that the presence of the witnesses at the dictation, (which has been udíformly held to be necessary in a will of this form — Langley v Langley, 12. La. 114; Mouton v.
    Carnean, Ann. 566.) may be implied from the general tenor of the will. Spofford, X Where it is fairly deducible from the tenor of the will that the witnesses were present during its dictation, the burthen of proof to establish the contrary is upon those who attack the validity of the / will. Temporary absence of one of the witnesses, and for the purpose of getting a drink of water, in a passage opening upon the room where the Act was received by the notary, will not be sufficient to invalidate the will. Spofford, X

      Temporary cessation during the confection of a will, occasionally induced by the weakness of the testator, does not constitute such an interruption as will vitiate the wiil.
    APPEAL from the District Court of Bossier, Egan, J.

      Wathins & George and Hood & Knox., for plaintiff and appellant.

      B. L Hodge for defendant
   Spohford, J.

The heirs at law of Andrew Lcmoson seek to set aside his last will for informality. The instrument purports to be a nuncupation will by public act.

1st. The first objection to its validity urged, in argument, although not very distinctly alleged in the pleadings, is that the will does not expressly state that it was dictated by the testator to the notary in the presence of the subscribing witnesses. “ The nuncupative testaments by public act must be received by a notary public, in the presence of three witnesses residing in the place where the will is executed, or of five witnesses not residing in the place.

“ The testament must be dictated by the testator, and written by the notary as it is dictated.

“ It must then be read to the testator in presence of the witnesses.

“ Express mention is made of the whole, observing that all those formalities must be fulfilled at one time, without interruption, and without turning aside to other acts.” — C. C. 1571.

It thus appears that express mention is required to be made of the facts that the will was dictated by the testator, and written by the notary as it was dictated, but no such express mention seems to be required of the fact that it was “writtenin the presence of the witnesses.” By the next clause of the Art. 1571, it appears that the presence of the witnesses when the will is read to the testator must be expressly mentioned. It would seem to follow that the presence of the witnesses at the dictation (which has uniformly been held to be necessary in a will of this form, Langley v. Langley, 12 L. 114. Mouton v. Cameau, 5. Ann. 566.) may be implied from the general tenor of the instrument. And Paillet, commenting upon the Art. 972 of the Napoleon Code, analagous to our Art. 1571, remarks: II n’esl pas requis, it peine de nullité, qu’il soit fait mention expresse de l’ócriture du testament, par le notaire, an presence des t'emoins. La mention oxigée par 1’article 972 du code civil ne doit s’appliquor qu’aux formalités presentes par cet article méme.” The inference that the witnesses wore present, like an express mention, is liable to be rebutted by parol evidence. In either case, if it be proved that any of the necessary witnesses were not present at the dictation, the testament will be set aside.

It is a reasonable inference from various clauses and expressions in the testament before us, that the witnesses were present when the will was dictated. It is expressly stated that they were present when it was read to the testator. The clauses from which it may be implied that the witnesses were present at the dictation, are as follows: “In testimony whereof, I haved caused the said And/i'ew Lawson to acknowledge and sign this as his last will and testament after reading the same in an audible voice in his hearing in the presence of the subscribing witnesses, whom I have caused to sign as such, I the said notary having written this Act in my own proper hand, at and by the dictation of the said Andrew Lawson, without turning aside to other business. Thus done and signed in presence of the subscribing witnesses all of lawful age residing” &c., <&c.

There was no clearer statement of the witnesses being present at the dictation of Maaartn's will, which was held in 7. Ann. 485, to announce that fact by legal implication from the expressions used, although it was not distinctly and expressly stated in terms. The presence of the witnesses at the dictation, was also inferred from the general expressions of the will in Pégerot v. Meuillon, 3 M. 114, under a textual provision of the old code similar to that contained in the Art. 1571 of the new.

2. In the next place it is contended that the proof is sufficient to show that the attesting witnesses were not present all the time during the dictation of the will. The burden of proof was upon the plaintiffs, as they alleged and assumed to establish, in opposition to the influences fairly deducible from the language of the will, that one or more of the witnesses was absent during a part of the dictation. The witnesses upon whom the plaintiffs rely, defeat the allegations of their petition. Boon, on cross-examination, says, “ he does not think that any part of the will was written or dictated during his absence from the room.” His absence was but temporary, and for the purpose of getting a drink of water in a passage open upon the room where the Act was received by the notary. Homit/u, on cross-examination, says, “ the will was entirely dictated by said Lawson to Robert J. Looney, and written by said Looney as dictated, and read aloud by said Looney to said Lawson and the witnesses, and signed by said Lawson and said witnesses, all in my presence, to the best of my recollection.”

The bill of exceptions reserved by the plaintiffs to their answer upon the cross-examination, was untenable, because the matters elicited upon the cross-examination were pertinent to the examination in chief. The plaintiffs sought to impeach and contradict the public Act; the defendant merely sought to sustain it against this attack, and to explain or rebut the evidence offered by plaintiffs.

3d. The appellants again contend that there was an interruption and a turning aside to other Acts during the confection of the will. Such a temporary cessation as was occasionally induced by the weakness of the testator, does not constitute a legal interruption which would vitiate the will. Chardon's Heirs v. Bongue, 9 L. R. 470. And as to the conditional bequest in favor of Harrison, ■erroneously styled a codicil, although the attention of the testator was called to the subject by an interrogatory put to him after the main dispositions of the will were made, we are unable to say that it was foreign to the legitimate business in hand.

4th. It is also said that the will is defective for the uncertainty of the objects bequeathed ; in other words, the legacies are said to be imperfectly described. So far as this record informs us, we think there is a sufficiently accurate description of the property donated by the will, to enable the Courts to indentify it. Id certwm est quod certmnreddiprotest.

5th. The formal objections to the will being overruled, one or two incidental •questions are presented by the argument of counsel in submitting the cause, and by the appelee’s prayer for an amendment of the judgment. 'We consider this prayer to amend properly before us, under the facts of the case as disclosed by the document on file. The right to file an answer with the brief of appellee seems to have been expressly reserved when the cause was submitted.

In the answer of the appellee there is a prayer that the judgment be so amended as to allow him one-half of the property depending upon the comnxunity between the deceased Lawson and his wife, herein represented by the appolee as his universal legatee. No such amendment is necessary. Upon tho tho death of Andrew Lmnson, one-half of tho community property vested in his surviving widow, subject to the pajnhent of her half of the community debts. This interest does not purport to bo bequeathed by the will and cannot be affected by it. It would be superfluous to reserve to the defendant what has never been claimed by the plaintiffs.

The apellee further prays that the judgment be so amended as to decree that tho debts duejjy the succession of Lawson bo paid out of the property acquired by said Lawson after the 20th July, I860, the date of the will, it appearing that tho testator survived more than three years after that date, and accumulated further property.

We concur with the District Jugde in the opinion that the will speaks not from the death of Lawson, but from its date; it disposes only of property owned by the testator when it was written, not of subsequent acquisitions. O O. 1713, 1714, 1716.

As to property acquired after the date of the will, or not embraced in tho terms of the will, the deceased died intestate, and his heirs at law inherit such portions of his estate, after the debts are discharged according to law. Wo are of opinion that the testator’s wife, Mary Elizabeth liar ail Taliaferro, was a particular and not an universal legatee, nor a legatee under universal title, O. O. 1699, 1004, 1618. “Toute disposition qui ne rentre pas dans les definitions ei-dessus nommées des legs universels et á titre universel, constitue un logs particulaier. Ansi celui quilégue tous ses immeubles, mais comme bions determines, et non on masse ; celui qui legue máme on masse et dans leur assemble, toutes ses maisons, tous ses bois, tous ses immeubles des colonies ou de tel d'epcvrtement et qui exclut ainsi ses autres immeubles, ne fait que les legs particuliers.” 4 Marcadé No. 119. O. N. 1010. And “ the legatee by a particular title shall not be liable to the debts of tho succession, except the reduction of the legacies as is before provided, and except tho action of the mortgage of the creditors.” O. O. 1635.

As already intimated, the community debts must he paid out of the community property and the share of Mrs. Lawson is equally burthened with that of Lawson's succession, for the discharge of these debts. If Lawson left any separate debts, they must he acquitted out of his share of the acquisitions, made after the date of the will, or out of his property not embraced by the will, rather than out of the property bequeathed by him to tho particular legatees. Of course the mortgage creditors, if any, are to be paid by preference out of the property hypothecated to them.

It is therefore, ordered that tho judgment of the District Court be so amended as to order the community debts to be paid by preference out of the property heretofore held in common between tho deceased Andrew Lawson and his wife Marry 11. L. Talliaferro, in equal proportions out of the share of each spouse; and that, after the payment of such community debts out of the community estate, any separate debts due by the said Andbrew Lawson, if such there ho, shall he acquitted out of his interest in property acquired subsequent to the date of the will, or not embraced within its terms, before going upon any property specially bequeathed to his legatees; and it is further ordered and decreed that the judgment appealed from be, in all other respects, affirmed, the costs of this appeal to he borne by the plaintiffs and appellant.

Merrick, O. J.

I think we can only consider those nullities which are expressly alleged. If the law requires certain forms to be observed in the confection of a will, the party who relies upon any want thereof should, expressly allege such informality.

In this case it is not objected that the will was not received in the presence of the witnesses. It is merely alleged that it does not “on the face of the will show that it was dictated in the presence or hea/i-ing of the witnesses by the testator to the notary.”

The law only requires that express mention should be made of the following formalities, viz:

1st. That the will was received, in the presence of these witnesses, residing; in the place, &c.

2d. That it was dictated by the testator and written by the notary as it was-dictated, and

3d. That it was then read to the testator in tlie presence of the witnesses. As no objection is made to the will on the first ground, it must be' considered' as waived.

If then the witnesses were present when the will was received, they must have been there when it was dictated, for the dictation is a part of the act of receiving the will. But it is objected that it is not mentioned that it was dictated in the presence of the witnesses. The law does not require it to be so mentioned in the will. If it be conceded that the will was received in the presence of the witnesses (and it is not objected to, that it was not so-received) then under the law it is sufficient on this point if express mention be made that it was dictated by the testator, and written by the notary as directed.

The District Judge was of the opinion that it sufficiently appeared that the witnesses were present at the dictation of the will, among other things from the concluding clause, “ thus done and signed in thepresence of the (subscribing witnesses ” &c., and I am notprepared to say, under plaintiffs, allegations, that he erred in his conclusions. I therefore concur in the decree in this ease.

Cole, J. Concured in this opinion.


author: OóiiE, J.

text:
      W. H. Hollomon, et. al., v. W. Hollomon.
    l‘he character and effect of a deed to slaves, made in Alabama, must be construed by the laws of that State although the parties afterwards remove to Louisiana.
    II. in consideration of love and affection, and the further consideration of one dollar, the receipt of which he acknowledged, did give and grant with warranty, to W. II., (his son), and his heirs and assigns “ at the death of H. and the wife of H” certain slaves. Held: That by laws of Alabama this was a deed of gift to the son with the reservation of a life estate in the slaves to H. and his wife.
    APPEAL from the District Court of Bienville, Egan, J.

      Wathins for plaintiff and appellant.

      MeGuAre & Bap, for defendant.
   OóiiE, J.

The plaintiffs brought this suit as heirs of their father Bunel Ilollomon-, alledging that Bunel Holloman and this defendant WilUarn Hollomon, were the only children of Hcmnon Ilollomon.

That their father, Bimel Hollomon, died before their grandfather Hm’mon Hollomon, who died in this State just prior to the institution of this suit.

They claim as forced heirs, one-half of the property left by their grandfather Harmon Hollomon, who died intestate.

They sue for a partition and for one-half of eighty acres of land and four slaves, and one-half of the hire of said slaves from the death of Hm'mon Hollomon.

The defendant sets up title to said slaves under a deed of gift from Harmon Hollomon, bearing date 26th of December, 1839. The deed of gift is as follows :

“The State of Alabama,
Pike County.”
“Know all men by these presents, that I, Hm'mon Hollomon, of the State and County aforesaid, for and in consideration of the natural love and affection which I have,” or boar toward my son, William Hollomon, of the State and County aforesaid, as well as for the further consideration of one dollar t'o me in hand paid by the said William Hollomon, at or before the sealing and delivery of these presents, the reeeipt whereof I do hereby acknowledge, have given and granted, and by these presents do give and grant unto the said Willimn Hollomon, his heirs and assigns at my death, and my wife, Jane Hollomon' s death, the following described negroes, namely, to wit: Rachel, a woman about thirty-five years of age; Jem, a boy about eight years old; Willis, a boy about five years old ; Jacob, a boy about three years old, and Claiborne, a boy about one year old. To have and to hold the above named negroes unto him, the said WilUam Hollomon, his heirs and assigns, forever, and I, the said Hollomon, my heirs, executors, administrators and assigns, to warrant unto the said William Hollomon, his heirs and assigns, the said title of said negroes before named against the claim of myself, my heirs and assignees, after my death, and after the death of my wife, Jam Hollomon, as aforesaid, and against the claims of all and every person or persons whatsoever, I will warrant and defend by these presents.
In witness whereof, I have hereunto set my hand, and affixed my seal, in presence of these witnesses, this 26th day of December, in the year of our Lord, 1839.
[Signed], his
HARMON M HOLLOMON, [L.S.], mark.
[Signed]
“ A. C. Towksend, J. P.
Silas B. Townsend.”
State of Alabama, )
Pike County, f
“ I, Andrew C. Townsend, an acting Justice of the Peace for said County, do hereby certify, that on the 20th day of December, 1839,' Harmon Hollomon personally appeared before me, and acknowledged the foregoing instrument to be his voluntary act and deed.
Given under my hand and seal, this 26th day of December, 1839.
[Signed]
A. O. Townsend, J. P. [L.S.]
“ Recorded in Book B. pages 113, and 114, January 13, 1840.”
[Signed]
Jno. D. Cutts, Clerk County Court.

It was agreed by the parties in the lower court, that the said instrument may be used in evidence as genuine, and it is admitted as such.

There was a consent judgment rendered during the progress of this cause, by which plaintiffs recovered of defendant one hundred dollars in full satisfaction of their interest in the land sued for, and this decree was made without prejudice to the rights of plaintiffs to prosecute their claims as to the other matters in their petition, and this judgment was not to affect the costs of the final decision. It is admitted that plaintiffs have been paid this judgment.

This cause was first tried by a jury who found a verdict for the plaintiff.— There was a new trial granted, and the jury having been waived, there was judgment for defendant, and plaintiffs have appealed.

The consent judgment rendered in this case limits the inquiry into the merits of the cause to the question of title to the slaves named in plaintiff’s petition.

The plaintiffs claim as heirs at law of Harmon Hollomon deceased, a former owner; while the defendant sets up title in himself, derived from said Hcvrmon (his father, and the grandfather of the plaintiffs,) by means of said deed of gift, and it is upon the validity or invalidity of this deed, that the case depends.

This deed is, by the laws of Alabama, a donation of the property in the slaves to defendant, with a reservation of a life estate in the donor; or a gift of the property subject to a loan for use to the grantor, by which fee present passed to the donor at the date of the instrument.

Yide, Golding v. Golding's Administrators, vol. 24. Alabama Reports, N. S. p. 126.

The character and effect of this deed must be interpreted and governed by the laws of Alabama, and a subsequent removal of the parties to Louisiana, cannot affect anterior and vested rights of property.

This case is very similar to that of McColl v. White. 10. A. p. 577.

Defendant had a right of property in these slaves, subject to the life estate of the donor previous to the removal of the parties to this State; he is therefore entitled to a judgment in his favor.

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


author: Spobford, J.

text:
    Succession of Parmelia Sloane—Opposition to appointment of Administrator.
    The beneficiary heir, of age and present in the State, has a preference for the administration over the tutor of co-heir who is a minor.
    The term-, beneficiary heir, applies to one who may accept, as well to one who has accepted with the benefit of inventory.
    A woman may be appointed to administer a succession in which she is interested as heir.
    APPEAL from the District Court of Union, Riehardson, J.

      Balear & Morris, for appellant.

      Garnett & Benton, for appellees.
   Spobford, J.

Robert Lassitee, alleging himself to be the surviving husband of Rm'melia Sloane, deceased, and tutor of their minor child, Len Moore Lassitee, applied for letters of administration upon her succession.

William O. Jones and Belamare Young, wife of Mugh, Young, children and. heirs of age of Farmelia Sloane, opposed the application, alleging a better right in themselves. Their opposition was sustained and Robert Lassitee has appealed.

In this court, the counsel for Robert Lassitee (who is now the provisional administrator under an appointment by the Clerk of the District Court) has suggested the death of the minor child, Len Moore Lassitee, and prayed that the case he continued to make the child’s heirs parties to the suit.

So far as the claim of Robert Lassitee to the administration is based upon the fact of his being tutor to his minor child, it is obvious that it has lapsed by the death of the child. Instead of being a cause for continuing the suit, and citing in the child’s heir, (that is the appellant himself,) the child’s death is rather a cause for dismissing the application of Robert Lassitee altogether. But as he claims to he a dative tutor to certain minor children of Parmelia Sloane, by her alleged marriage with one Wilson, we deem it proper to examine the claims of the opponents to a preference over him in the administration.

It is only when all the beneficiary heirs are minors, that their tutors or curators can claim the preference for the administration. O. O. 1037.

But “ in the choice of the administrator, the preference shall' he given to the beneficiary heirs over every other person, if he be of age and present in this StataJ O. O. 1035.

“ If there he two or more beneficiary heirs of age and present in this State, the Judge shall select one or two from among them, whom he shall consider thc most solid for the administration of the succession.” O. O. 1036.

The opponents are acknowledged to be heirs of the deceased, of age and present in the State.

But the appellant contends that they are not “ benefieicary heirs,” because they have not yet accepted the succession with benefit of an inventory; and. as the Statute of March 16, 1848, p. 84, makes the minor a beneficiary heir by operation of law, their representativo has as good a right to the administration as the opponents, if not a better right.

It is true the Article 879 of our Civil Code declares, that “beneficiary heirs are those who have accepted, the succession under the benefit of an inventory regularly made.” Definitions are proverbially dangerous, and no where more so than in a code of laws. A reference to other Articles under the same title, will show how imperfect this definition is, or how soon the compilers of the Code forgot it themselves.

“ By term for deliberating, is understood, the time given to the benefieicmy heir to examine if it be for his interest to accept or reject the succession which has fallen to him.” C. C. 1026. Here we find a person who has neither accepted nor renounced a succession styled the “ beneficiary heirand these terms are undoubtedly used in the Article 1842, to embrace not only the heir who has accepted with benefit of inventory, but one who may do so.

We conclude that the opponents are beneficiary heirs within the meaning of Articles 1042.

But it is objected that Delaware Young, wife of Hugh Young, although a beneficiary heir of age, and present in the State, cannot take the office of administratrix by reason of her sex. The cases of Carraby v. Carraby, 7 New Series, 466, and Cusa v. Calvana, 4 Annual, 538, are cited to sustain this position. But it is now settled that although a woman is in general disabled from performing civil functions, (Civil Code, 25,) yet she may be appointed to administer a succeseion in which she is interested as heir. Succession of Block, 6 An. 810; Succession of Penney, 10 An. 290. See also Succession of Williamson, 3 An. 262; Ferrar’s Administratrix v. Lambeth, 11 L. 108.

We are unable to say that the evidence concerning the habits of W. O. Jones, is sufficient to show his incompetency to act in the capacity of administrator.

Judgment affirmed.


text:
    Succession of John Boyd.
    Orders rendered by the Clerk in the special cases authorized by law under the Constitution, have the same effect as they would have, if rendered by the Judge himself.
    The executor, without seizin being given to him by the will, has full powers of administration, and unless the heirs furnish him with money to pay the debts and legacies, they cannot prevent him from taking possession of the property and leaving sufficient to be sold to settle up the estate.
    The destitution, of an executor cannot be demanded by way of opposition, but should be done, if there be cause, by direct action.
    APPEAL from the District Court of Morehouse, Richardson, J.

      Mathews & McFee, for plaintiff.

      Todd & Brigham, and Ludeling, for opponents and appellants.
   Merrick, O. J.

John Boyd died in Morehouse parish on the 28th day of April, 1857, leaving a large estate, consisting of lands, negroes and personal property. A will dated 25th October, 1850, was found, and it was probated on 30th of April.”

“ By this testament Boyd nominated John V. Bobertson and Thomas M. Jones, his executors.”

“ On the 2d of May, Robertson, one of the executors named in. the will, declined the appointment, 1 to obviate objections that might be made to him personally.’ Thereupon, Jones applied to be confirmed as sole executor of the last will of Boyd, and the GlerJs made the order confirming him as sole executor.”

“ On the 4th of May, Thomas If. Jones filed his petition, alleging that ho and Robertson had been nominated as executors by the last will of Boyd, that he had been confirmed as such, that by the terms of the will seizin of the property was not giren to the executors, and that the appointmentjf an adminis■trator was necessary; and he prayed to bo appointed administrator of the estate.

Joseph Boyd filed an opposition to the appointment of Jones, and after-wards filed an amended opposition, and prayed that the order made by the Clerk confirming Jones as executor, be rescinded, and asking to be appointed in his stead.”

“ William Maeonchy, a creditor, also filed an opposition, and prayed to bo appointed curator, &c., of the succession of Boyd."

There was judgment dismissing the oppositions of Boyd and Maeonchy, and recognizing Jones as sole executor, with full seizin of all the property of John Boyd.

Erom this judgment Boyd and Maeonchy have both appealed.

The executor, it should also be observed, filed an amended petition after the opposition was filed, an'd alleged that he had erred in his first petition in stating-that he had not seizin, and that he had seizin by the will.

Under this state of facts, the opponents contend that the executor, Jones, has not the seizin of the estate, as he has judicially admitted, and as Robertson has declined to act, the trust which the testator intended to confer on both tTones and Robes'tson, has lapsed.

The Constitution has authorized the Legislature to confer the power upon the Clerks to make certain judicial orders. Art. 76.

These orders, when rendered by the Clerk in the special cases authorized, have precisely the same effect as they would have, if rendered by the Judge himself under the same circumstances. The order of the Clerk appointing Jones, is not, therefore, the loss effective, because made by the Clerk. Until annulled, it must be considered as conferring upon the executor the same power that the like order would do, if made by the Judge. The Clerk may have erred in appointing- one of several executors, sole executor, without requiring him to advertise his application and give bond as a dative testamentary executor, (upon which, however, we express no opinion,) but the appointment once made, will confer upon such executor the power to administer the estate, as fully as if ho were a sole executor by the will. Since the Act of 1887, we think the executor without seizin, has the quasi administration of the succession, as well as the power to apply to the courts for the sale of property to pay debts and legacies. Revised Statutes, 2, 222; 79, sec. 14. If the heirs and legatees are absent, he should take charge of the estate for their benefit, whether seizin has been expressly conferred by the will or not. If seizin is not given him, or if the heirs furnish him with money to pay the debts and legacies, he cannot, as between themselves, prevent them from taking- possession of the property; hut his power of administration will enable him to collect the funds and' cause property sufficient to settle up the estate to be sold. O. O. 1661, 1665; Revised Statutes, p. 2; O. P. 133; Ibid, 111; O. O. 1G63, 1666.

The application for letters of administration by Jones was, therefore, an unnecessary proceeding, as in his capacity of executor, in the absence of the heirs or their agents, he had power to administer the estate, and whether the heirs were present or absent, he had power to collect funds, sell property, pay debts, and in fine to liquidate the affairs of the estate.

It was irregular, by way of opposition, to demand the destitution of the executor. It should be done, if there be cause, by a direct action.

We are of the opinion, that the appointment of an administrator was wholly unnecessary, so long as the office of executor continued, and that the estate ought not to be charged with the costs of two administrations. As the executor commenced these irregular proceedings, we think they should be dismissed at his cost.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and that the application of Thomas M. Jones, for letters of administration upon the succession of John Boyd, deceased, and the opposition of Joseph Boyd and William Maeonelvy, be dismissed; and that the said Thomas M. Jones, pay the costs of both courts.


author: Spofford, J.

text:
    J. A. Fluker v. B. Davis and Sheriff.
    Successive injunctions upon different grounds which might have been put at issue in one proceeding, will not be allowed.
    A PPEAL from the District Court of Morehouse, Bichao'dson, J.

      Todd & Bo'igham, for plaintiff and appellant.

      8. G. Ban-sons, for defendants.
   Spofford, J.

This is a second injunction sued out by this plaintiff to restrain the execution of a judgment against Thomas S. Ba/rham, upon lands in his possession derived from Ban'ham. See Fluker, administratrix v. Bobo, Sheriff, 11 Ann.

There are no grounds justifying a resort to the remedy of injunction pleaded in this case, which should not have been pleaded in the former suit. And it is inadmissible to hamper the execution of judgments by successive injunctions upon different grounds which might have been put at issue in one proceeding. Any other rule would open the door to endless litigation and delay. McMicken v. Morgan, 9 Ann., 208.

The mode of executing the judgment, so as to secure the respective rights of the parties upon the proceeds, has been provided for in the decree of the District Court, of which the plaintiff in question certainly has no reason to complain.

Judgment affirmed.


author: Spokfokb, J.

text:
    R. E. Alcock, for the use, &c. v. John McKain.
    The special endorsee of a bill or note, may disregard all posterior endorsements, even though special, and avail himself of the possession of the instrument to sue the maker.
    A PPEAL from the District Court of Morehouse, Richm’dson, J.

      McGwire & Rmj, for plaintiff and appellant.

      Todd & Brigham, for defendant.
   Spokfokb, J.

There was judgment in favor of the defendant in a suit upon a promissory note of which he was maker, and the plaintiff has appealed.

The defendant relies, in part, upon a plea of prescription. The plea is repelled hy the testimony of two witnesses, disclosing acknowledgment hy the defendant.

But it is contended that the evidence of one of these witnesses was inadmissible, because he failed to answer, fully, one of the defendant’s cross interrogatories, and also to annex certain extracts from his commercial hooks. It does not appear that the witnesses’ hooks contained any such entries as were sought to he extracted hy the interrogatory. All the cross interrogatories purport to have been answered. If they were answered evasively, the fact would go to the credit of the witness, not to the admissibility of his deposition. But there is no evasion made palpable. Nor can we conclude that the witness is rendered unworthy of belief by the evidence that Gi'ibble & Montgo'ni&ry once sold a small lot of cotton for the account of John McKain. It does nof necessarily result from that circumstance, that John McKain himself shipped the cotton to them, the point to which the witness was interrogated.

It is also argued by the appellee, that the plaintiff cannot recover, because, being himself a special endorsee of the note sued upon, he had endorsed it once in full to the cashier of the Louisiana State Bank, from whom no re-transfer, to himself, was shown.

The more recent doctrine of the court is, that under circumstances like these, the endorser of a hill or note, may disregard all posterior endorsement, even though special, and avail himself of his possession of the instrument to sue the maker, it being presumed that, upon protest for non payment, it had been remitted to him by the subsequent parties whom he was hound to indemnify. See Squiers v. Stockton, 5 Ann., 120; Henrie v. Baily, 17 La., 217.

It is, therefore, ordered, that the judgment of the District Court he avoided and reversed; and it is, now ordered, adjudged and decreed, that the plaintiff recover of the defendant, the sum of five hundred and fifty-three dollars and nine cents, with five per cent, interest thereon, from the 27th of February, 1850, until paid, and three dollars costs of protest and the costs of suit in both courts.


author: Spojtord, J.

text:
    Powell & Hopkins v. M. Hopson et al.
    An appeal from an interlocutory order, oyer-ruling a motion to dissolve an attachment, will be dismissed unless it appear that such order will work an irreparable injury.
    APPEAL from the District Court of Ouachita, Eichwdson, J.

      Mathews & MoFee, for plaintiffs and appellees.

      McGuire & May, for defendants.
   Spojtord, J.

This appeal is premature and must be dismissed. It was taken from an interlocutory order over-ruling the defendants’ motion to dissolve an attachment sued out in the case. It is only when an interlocutory judgment may work an irreparable injury to the party against whom it has been rendered, that an appeal will lie from it. O. P., 566. And the party who appeals from an interlocutory judgment, must show that such injury may flow from a refusal to entertain the appeal.

But in this case, it clearly appears from the record, that no irreparable injury can, in the ordinary course of things, result from having the Interlocutory order to await the decision of the law upon its merits. No property of the defendants’ appears to have been taken into his possession by the sheriff Two persons, Bussy and Douglass, have been served with the garnishee process. Bussy has not answered, and it does not, therefore, appear that he owes-anything to the defendants, or has anything of theirs in possession.- Douglassr the other garnishee, has answered, and discloses that there is pending against him in the courts, an unliquidated claim in favor of Matilda Hopson, one of the defendants, for §3,861 50, with interests and credits. If the garnishees owe the defendants, non constat, that they would pay immediately, but for the garnishment. And if they are delayed by it from paying, the damages would be only the interest upon the claim of less than $4,000, which can be easily repaired, and is secured by the bond given by the plaintiffs to indemnify the defendants against all injury resulting from an illegal attachment. It is stated in the appellants’ brief, the garnishee, Bussy, owes the defendants $10,000, he can pay over to them all but the sum claimed by the plaintiffs, (less than $4,000,) and the withholding of that for a time, cannot bean injury beyond remedy. The docket of this court is too crowded to justify us in needlessly consuming time devoted to the public service by trying cases piece-meal, where the law does not require it. This does not appear to be one of the cases that demands our summary interference.

Appeal dismissed.