author: Edstis, C. L

text:
    Lacour v. Delamarre et al.
    Where there is no evidence that the husband has authorized his wife to sue, and there is no appearance on his part, personally or by attorney, the suit must ho dismissed. Hor own statement that she was authorized, made in her petition, is insufficient. •
    Appeal from tile District Court of Point© Coupée, Deblieux, J.

      Lacoste, for the plaintiff,
    cited 6 Rob. 60. 5 Rob. 96. 4 Mart. N. S. S89. Code Pract. art. 897.

      Cooley, for the appellant.
    Plaintiff was not authorized by her husband to sue. Gorman v. Bergans, 1 Rob. 468. Same case, 2 Rob. 282,
   Th,e judgment of the court was pronounced by

Edstis, C. L

In this case the plaintiff, a married woman, alleged to be separated of property from her husband, took out an order of seizure ou a mortgage against the defendants, from which one of them, Louise Mourain, has appealed. It is objected that, there is no proof of any authorization on the part of the husband to institute these proceedings. The only evidence of any authorization, is her own statement to that effect in her petition.

We have held, that where the husband and wife appear in the same suit as plaintiffs or defendants, or the husband appears in court as authorizing his wife, the authority ,on the part of the husband to the wife’s appearance necessarily follows; but in this case there is no appearance on the part of the husband, in person or by attorney. We consider the rule well settled, and the authorities cited by the counsel for the appellant are conclusive.

The judgment appealed from is, therefore, reversed, and the plaintiff’s petition dismissed, with costs in botli courts.


source: Caselaw Access Project

author: SiiiniíLji, J.

license: Public Domain

text:
    Medley et al. v. Voris et al.
    The omission of & seal in the copy of a citation in the record of appeal will not be considered as establishing that the citation was issued without a seal, it being a common practice with clerics not to copy the seal, in making a copy of the citation.
    Where a citation signed by the clerk, purports to have been issued from a District Court ' sittingin a particular parish, and calls upon the defendant to file his answer in the clerk's office of that court, at a certain place, it is a sufficient description of the place where the clerk's office is held. C. P, 179.
    Where notice of protest of a note, payable in a particular parish, is shown to have been mailed, addressed to the indorser at a post office in another parish, in which he resided, it is for him to prove that there was another office nearer to his residence.
    ,An error in allowing interest from the 1st instead of the 4th of the month, on a sum of seven hundred dollars, is too insignificant to justify the reversal of a judgment.
    Appeal from the District Court of Terrebonne, Randall, J.
    Beatty, for the plaintiffs. Stevens, for the appellant.
   The judgment of the court was pronounced by

SiiiniíLji, J.

The defendant, R* R. Barrow, is appellant from a judgment rendered against him on a promissory note, of which he was endorser. After a judgment by default, he filed an exception and answer. The exception pre* seats a general objection to the- citation as informal, In his brief, the eounse* presents two alleged points of informality. First: That the citation was not under the seal of the court. As he has not thought proper to produce and offer in evidence the citation served upon him, neither this court, nor the court below, has been enabled to judge if the defect existed ; and, in the absence of such proof, we will presume the clerk did his duty. As to the copy of citation in the transcript of appeal, to which we are referred, it exhibits no seal or copy of a seal; but we do not consider this circumstance as establishing that the citations issued were unsealed, for it has been common for clerks in copying citations in the transcript to neglect to copy or notice the seal. Second : That the place where the clerk’s office was held, was not described in the citation. The copy of the citation in the record bears the title of the District Court of the Fifth Judicial District, sitting in and for the parish of Terrebonne, is signed by the clerk, and calls upon tho defendant to file his answer in the office of the .clerk of said court, at Houma. This designation appears to us a sufficient compliance with the 179th article of the Code of Practice.

The note was dated at Houma, was made payable at a bank in another parish, and the notice was addressed to the appellant at Houma. This being a post town in the parish of Terrebonne, and the appellant being a resident of that parish, the notice must be considered as properly mailed at the place of protest, and properly thus addressed. If there was a post office in Terrebonne parish, or elsewhere, nearer than that of Houma to the appellant's residence, the prima facie showing made by plaintiff, threw upon the appellant the burden of proving such proximity. Yeatman v. Erwin, 5 La. p. 266.

The appellant has also objected that the original protest and certificate of notice were offered in evidence, and that it does not appear that either the protest or certificate was recorded. We are at a loss to see how, under the fair iaiendment of the statute, an original can be considered evidence inferior to a eopy of a recorded original.

The appellant complains that interest was given .on the sum of $700, from the 1st March, 1846, instead of the 4th March, 1846. The difference is too insignificant to justify us in reversing this judgment, and inflicting on the plaintiffs the costs of an appeal, by which the appellant has gained a delay of some months. Judgment affirmed.


author: Slidell, J.

text:
    Semple, Administrator, v. Barrow.
    APPEAL from the District Court of Terrebonne, Randall, J.

      Beatty, for the plaintiff. Stevens, for the appellant.
   The judgment of She court was pronounced by

Slidell, J.

The note sued upon is drawn by the defendant to the order of Baker, whose administrator the plaintiff is. The note was annexed to the petition, forms part of the record, and its execution was not denied. The objection under these circumstances, that the note is not stated in the clerk’s note of .evidence to have been formally offered in evidence, is frivolous. , A similar objection as to the formality of citation, is raised as in the case of Medley v. Voris just decided, and which was there considered. There is also a like mistake of three days in allowing interest, which, as we there stated, we deem ioo trifling .to justify a reversal. Judgment affirmed.


author: Edstis, C. J.

text:
    Mourain v. Delamarre.
    The debts of the partnership must be paid, before any'partner can have a right to require a particular piece of partnership property to be divided inland.
    APPEAL from the District Court of Pointe Coupée, Farrar, J.

      Cooley, for the plaintiff. Provosty and L. Jarán, for the appellant.
   The judgment of the court was pronounced by

Edstis, C. J.

This suit is instituted for the partition of certain lands and moveables belonging to the parties, and the principal object of it appears to have been to have a tract of land situated in the parish of Point Coupée divided in kind. The defendant in his answer alleges that, a special partnership as planters existed between him and the plaintiff, and that this tract of land was partnership property, and, in a reconventional demand, he prays for a liquidation of the affairs of the partnership, that the debts be paid, and for this purpose that the partnership property be sold. .He alleges that he is a creditor of the partnership, and he prays judgment for the amount due him, and for one half against the plaintiff personally.

The District Court decided that the tract,of land in Pointe Coupée should be divided in kind, that the other property should be sold, and that the accounts between the parties should be referred to an auditor. We think the evidence establishes the tract of land in Pointo Coupée to be partnership property, and that the court erred in ordering it to be divided in kind. The debts of the partnership must be first paid, before either party can have any such right as the plaintiff" insists upon.

It is obvious that the suit, as it now stands, is for the settlement and liquidation of the partnership affairs, and we have so recently given our views of the law in relation to suits of this kind that we deem it unnecessary to repeat them, and recommend to the serious attention of the parties the rules we have laid down in the case Gridley v. Conner, ante p. 87.

It is therefore ordered that, so much of the judgment appealed from as orders the division of the Pointe Coupée tract in kind be reversed, and that said tract be sold to satisfy the debts of the partnership; that the case be remanded for further proceedings; and that the appellee pay the costs of this appeal,


text:
    Headen v. Oubre et al.
    Where a debtor, whose property has been sold under a Ji. fa., receives from the sheriff the surplus of the proceeds of the sale remaining after payment .of the judgment creditor, it amounts to a ratification of the sale, and will preclude the debtor from disturbing it on account of any informalities in the execution of the writ.
    Appeal from the District Court of Pointe Coupée, Deblieux, J.

      Ratliff and Cowgill, for the appellant. Provosty and Cooley, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

A slave belonging to the plaintiff was seized and sold under an execution, and he now claims the slave as still his property, upon the ground of various alleged informalities in the writ and its execution. After the sale,- and application of a portion of the price by the officer who made the sale to the payment of the judgment creditor, there remained a balance in the officer’s hands. The plaintiff applied to the officer for the balance, and received a portion of it; and the only reason why the residue was not received by the plaintiff was, a subsequent dispute as to the amouht, which the officer tendered to him, and which the plaintiff refused to receive, alleging that he was entitled to more. These facts appear by the plaintiff’s own statement, in answer to interrogatories. They amount in law to a ratifioation of the sale. See Thomas v. Scott, 3 Robinson, 256. Judgment affirmed.


text:
    Slidell v. Rightor et al.
    APPEAL from the District Court of Ascension, Nicholls, J. It appearing by affidavit of the counsel for the appellant, that the record of this case could not be completed, in consequence of the destruction of a part of the original papers by a fire, which consumed the building in which the records of the District Court were kept, the case was remanded for a new trial.

      Beatty and Orymes, for the appellant, llsley, for the defendants.


author: Rost, J.

text:
    Hopkins et al. v. Van Wickle.
    Defendant; sold a tract of land on a credit, retaining a mortgage to secure the price. There was, at the time of the sale, a legal mortgage on the land, which was not mentioned, in the act of sale. The land was subsequently sold under a Ji. fa., at the suit of a creditor of the first purchaser, and was re-sold by the purchaser at the sheriff's sale to the plaintiffs, who, as part of the price, paid defendant the balance due on the original purchase. In an action by plaintiffs against defendant, for damages, alleging their inability to sell the land in consequence of the legal mortgage, and charging him with fraud in concealing its existence from the first vendee, on an exception that plaintiffs shewed no cause of action: HelcL that, plaintiffs not being parties to the act of sale from defendant, the omission to mention the legal mortgage, caused them, of itself, no immediate damage, and that it is only those acts or omissions which, immediately and of themselves, causo damage to another, for which a party is responsible under arts. 2294, 2295, of the Civil Code.
    Where a purchaser has paid the price, he has no recourse against his vendor until finally evicted, when he may call him in warranty. C. C. 2538.
    A purchaser can acquire no greater right than his vendor possessed.
    Appeal from the District Court of Point Coupée, Farrar, J.

      Provosty, for the appellants,
    cited Civil Code, arts. 2294, 2295, 2477, 2480, 2523, Troplong, Vente, nos. 437, 469, 497. Duranton, vol. 16, no. 264. Merlin, verbo Créancier. Wilkins tv. Bassett, 5 Hob. 492. Smithy. Wilson, 11 Kob. 522. Wilkins v. Bassett, 12 Kob. 29.

      Cooley, for the defendant.
    There is no privity of contract between the parties to this action. A purchaser, who has paid the price, has no right to have it restored before eviction, nor to security against eviction. Civ. Code, art. 2538. 17 La. 25.
   The judgment of the court was pronounced by

Rost, J.

In 1836, the defendant sold to one FUcheux, a tract of land for a Pr'ce Payable in four instalments, and retained a mortgage on the land to secure the payment of the price. In 1838, A. Ledoux & Co. and one Morris, judgment creditors of Fleckeux, had the land sold under two executions, and it was adjudicated to one Hamilton Hopkins, who paid about eighty dollars, that sum being the surplus over the mortgage of the defendant. Hamilton Hopkins sold one-half of his land to his brother, Henry I-Iopkins, and afterwards, in 1841, they both sold to the plaintiffs. At the time the defendant sold to FUcheux, there was against him a legal mortgage on the land, which is not mentioned in the sale. The plaintiffs, alleging their inability to sell the land on account of this legal mortgage, which has not yet been erased, instituted this action,- in 1844, charging the defendant w-ith fraud in concealing it from Flécheux, and claiming from him five thousand dollars damages.

The defendant excepted to the petition, on the ground that the allegations therein contained did not make out a cause of action against him. The court below having sustained the exceptions and dismissed the petition, the plaintiffs appealed.

It is not pretended that the damages claimed are due in consequence of any breach of contract; but the plaintiffs contend that arts. 2294 and 2295 of the Civil Code, provide that every act of’man that causes damage to another, obliges him, by whose fault it happened, to repair it, and that every man is responsible not only for the damage caused by his fraud, but also by his imprudence or negligence ; and that as they have sustained, by the omission of the defendant to declare the existence of the legal mortgage, the damage alleged in their petition, he is bound to indemnify them.

The commentary of Toullier, upon which they rely in support of their position, is conclusive against them. “ Those articles comprehend, says that.author, all acts of man whatever, which cause, immediately and by themselves, damage to another.” 11 Touil. no. 117. The omission-to mention the legal mortgage in the sale to FUcheux, in 1836, did not, immediately and by itself, cause damage to the plaintiffs, who were not parties to the act, and acquired no interest in the land till 1841. Tire immediate cause of the damage, if any there be, was their own neglect, in failing to ascertain that the land was free from encumbrance before they purchased it.

It is said that there is no wrong without a remedy; but in this case no-wrong has been shown. The mortgage complained of was inscribed in the proper office, and that inscription affected the plaintiffs and FUcheux with notice; no mention was made of it in the sale, because FUcheux, who is presumed to have been aware of its existence, dispensed the notary from producing the recorder’s certificate. There was neither concealment nor fraud on the part of the defendant; and one of the grounds upon which the plaintiffs expect to recover is, that they are not in danger of eviction.

At the time of the purchase by the plaintiff's, a large portion of the price was still due by FUcheux to the defendant, which they assumed to pay, and have accordingly paid. If FUcheux himself had remained in possession and made the payment, he would not,’under the allegations of the plaintiffs, be entitled to the restitution of the price, or even to security against eviction. Civil Code, art. 2538. 17 La. p. 25. As long as the purchaser, who has paid ths price, is not finally evicted, the only right which the law gives him, is that of calling his vendor in warranty, when the case occurs. Tropiong, de la Vente, no. 614.

The plaintiffs, who hold nothing moro thnn the right and title of FUcheux under a sheriff’s sale anterior to their purchase, can have no greater rights than the law gives him. The plaintiffs’ petition was properly dismissed.

Judgment affirmed.


author: Ewstis, C. J.

text:
    Lejeune v. Hebert.
    Where, in an action for the price of land, defendant resists payment on the ground of the existence of a servitude which had been fraudulently concealed from him, alleging it to have been created by public act, passed before a certain notary at a particular date, he [ may offer in evidence, as proof of the servitude, an act under private signature, of the same date aud recorded in the office of the same notary. The evidence will not be excludedfor such an inaccuracy in the description of it.
    Appeal from the District Court of West Baton E.ouge, Burle, J.

      Greves, for the plaintiff. W. E. Edwards, for the appellant.
   The judgment of the court was pronounced by

Ewstis, C. J.

The defendant resists the payment of a portion of the price of a tract of land, on the ground of the establishment of a servitude on the land sold previous to the sale to him, which had been fraudulently concealed by the plaintiff. It is charged in the answer as being given for a public road, by public act passed before Judge Favrot, on the 5th of September, 1840. It appears that the instrument upon which the defendant relies for the proof of the creation of the servitude was an act under private signature, and bore the date mentioned in the answer, and was recorded in the office of Judge Favrot, who was the judge of the parish of. West Baton Rouge, where the land was situated, and the parties reside, on the 2d of September, 1842. It would be carrying technicality to an extreme, to exclude a piece of evidence on such an inaccuracy as this in the designation of it. True the act was not an authentic act, but the date is identical, and it was recorded in the office mentioned. We think the judge erred, and that the bills of exception, except the first as to the amendment of the answer, which is not material, are well taken.

The judgment of the District Courtis, therefore, revered, and the case remanded for a new trial, with directions to the judge to receive in evidence, on due proof being made of its execution, the private act, dated the 5th September, 1840, mentioned in the bill of exceptions, and to receive the testimony of Vincent Kirkland, and Jean Baptiste Labauve, for the purpose for which it was offered by the counsel for the defendant; and that the plaintiff and appellee pay the costs of this appeal.


author: Kins, J.

text:
    Aillet v. Henry.
    In proceedings via ezeentiva, it is not necessary to servo the defouchmt with a copy of tho petition; and the Code of Practice, art. 734, expressly dispenses with any citation. The notice required by arts. 735, 736, is not a citation, but is in tlie nature of a notice of judgment ; and no law requires it to be served in the french language, oven when that is the mother tongue of the parly to be notified.

      Where a judgment, the execution of which has been enjoined, bears interest, such additional interest only can be allowed, on dissolving the injunction, as will make the rate allowed equal to the highest conventional interest.
    Appeal from the District Court of West Baton Rouge, Burle, J.

      Graves, for the plaintiff,
    contended that the service on the plaintiff should have been in french, that being his mother tongue, citing Code Pract. arts. 179, 625, 626.

      Labauve, for the appellant,
    cited 15 La. 431.
   The judgment of the court was pronounced by

Kins, J.

The defendant in this suit being a creditor of Aillet, the plaintiff, by a special mortgage, importing a confession of judgment, obtained an order for the seizure and sale of the hypothecated property. The plaintiff enjoined the proceeding, on the ground that his mother tongue is the french, and that the petition, notice of the order of seizure, and notice of seizure, were served on her in the english language only. Proof having been made of the facts alleged by the plaintiff, the injunction was perpetuated by the j udge below, and the defendant has appealed.

We think that the judgment appealed from is erroneous. In ordinary actions in which citations are necessary, the defendant may, if the french be his maternal tongue, require to bo served with a citation and a copy of the petition, in that language. Code of Practice, arts. 172, 179. But it has been repeatedly held that, in executory process it is not necessary to serve the defendant with a copy of the petition; and the Code of Practice (art. 734) expressly dispenses with citation in that proceeding. 15 La. 434. 9 Rob. 12.

The notice required by the 735th and 736th articles of the Code of Practice is not a citation, but is in the nature of a notice of judgment. 7 Mart. N. S. 514. 1 Rob. 297. No law requires that it should be served in the french language, when that is the mother tongue of the defendant.

The defendant prays for interest and damages on the dissolution of the injunction, to both of which she is entitled. The judgment enjoined, however, bears seven per cent interest, and but one per cent in addition can be awarded, eight per cent being the highest rate now allowed by law.

It is therefore ordered that the judgment of the District Court be avoided and reversed. It is further ordered that the injunction issued in this case be dissolved, and that the defendant, Henry, have judgment for, and recover from the plaintiff, Ursin Aillet and Matliurin Lejeune, his surety in the injuction bond, insólido, five per cent damages on the amount of the judgment enjoined, and one per cent additional interest on the amount of said judgment, from the date of the injunction to the dissolution of the same ; the plaintiff paying the costs of both courts.


author: Rost J.

text:
    O’Reilly v. McLeod.
    One who bas made useful and necessary repairs to the road and levees on the lauds of an absent proprietor, under an adjudication by the inspectors of roads and levees, is entitled to recover from the owner of'the land the value of such improvements, with interest from judicial demand, on the principle ihafe no man shall he permitted to enrich himself at the expense of another*

      Appeal from the District Court for Lafourche Interior, Nicliolls, J.

      Cole, for the plaintiff. Realty, for the appellant.
   The judgment of the court was pronounced by

Rost J.

The defendant is the owner of a tract of land having forty arpents front on bayou Lafourche, part of which front is wood land. In the fall of 1844, the inspectors of roads and Ievées of the district in which it is situated, having satisfactorily ascertained that it-was not in the power of the defendant to make to the road and Ievées upon said land the repairs they required, before the annual rise of the Mississippi river, .advertized those repairs to be made, in conformity with the 20th section of the act concerning reads and Ievées, approved in 1829, and they were adjudicated to the plaintiff, for the sum of $395.

The work was executed in due time, It is proved that it was well worth the price paid for it; that it was done according to the directions of the inspectors, who accepted it when finished, and gave the plaintiff a certificate, that he had fulfilled the obligations imposed upon him by the contract, as near as could be done on land either newly cleared or not cleared.at all, and .the surface of which had been much cut up by repeated overflows. Several witnesses corroborated this certificate, and proved besides that the road was as good and as well drained as could be expected, and that the levée was strong and well made, and stood the high water without accidents of any kind. The defendant having refused to pay the amount of the adjudication, these proceedings were instituted against the land, in conformity with the provisions of the act already cited. He intervened, by way of opposition, and his counsel have taxed their ingenuity to the utmost, and assumed every ground of defence of which such a case is susceptible. The court below gave judgment in favor of the plaintiff, and the defendant appealed.

Under the state of facts disclosed by the evidence, we conceive the main question involved in this controversy to be, whether the defendant can be permitted to enrich himself at the expense of the laborer, who effectually protected his land from inundation, and himself from the enormous damages for which he might have been liable to his neighbors, if the repairs had not been made, and their lands had been inundated in consequence of his neglect.

That question has long since been settled. It came before the Supreme Court of this State in the case of the Police Jury v. Hampton, 5 Mart. N. S. p. 389. The court there went into a long and elaborate examination of the law applicable to it, and concluded their able opinion as follows:

“ The failure of the police jury to give notice, cannot defeat this action. It is founded on the great principle of equity, that no man shall profit by the labor of another, without compensation; and neither error, nor bad faith on the part of the negotiorum gestor, will prevent him from recovering the amount to which he has benefitted another, if the work done was useful and necessary.” L. 6. 83, Dig. (3. 5).

We shall not weaken the arguments used on that occasion, by attempting to state them. We deem it sufficient to refer to them, and to say that we consider them as establishing conclusively, the rights of the plaintiff in this suit. He is further entitled to interest from judicial demand, and the defendant by his appearance and contestation on the merits, has waived any informalities that might have existed in the- proceeding in ran. Judgment affirmed.


text:
    Jewell et al. v. Porche.
    Whatever name may have been inserted in the certificate of the board of commissioners of the United States, confirming a Spanish grant, the confirmation must inure to the benefit of the real owner.
    A survey made by a parish surveyor under an order of court, and proved by the officer who made it, will be presumed to be correct, until the contrary is shown.
    A patent granted by the United States for land in Louisiana, which had been patented by the Spanish sovereign before the change of government, is, as to those claimingunder the Spanish patent, an absoluto nullity.
    Appeal from the District Court of Pointe Couple, Farrar, J.

      Cooley, for the appellants. Rsley, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs claim a tract of land in possession of defendant, and described in their petition as section no 63, in township 6, west of the Mississippi, range 10 east, containing 77 superficial acres, under purchase and a patent from the United States. The defendant resists their claim on the ground that, she is the just owner and possessor of the land by descent from her father, George Olivot, and in virtue of a Spanish patent, issued in his favor in 1791, and duly confirmed by the board of commissioners of the United States, after the change of government. She further avers that her father and herself have been in actual possession of the land ever since the date of the patent; that there are no vacant lands adjoining above or below it; and that the sale made to the plaintiff by the United States, was the sale of the property of another, and, as such, null and void, as well as the patent issued thereon. The parties made proof of their respective titles, and the court having given judgment in favor of the defendant, the plaintiffs appealed, and ask a reversal of the judgment on two grounds:

1st. That it is not satisfactorily proved that the fines of the Spanish patent include the locus in quo.

2nd. That the confirmation of that patent by the board of commissioners was to George Olivet and not to George Olivot.

With the evidence in the record of possession during fifty years and more by Olivot and his descendants, the last ground cannot be considered as serious. Whatever be the name inserted in the certificate, the confirmation must inure to the benefit of the real owner. 3 La. p. 107. 5 Mart. p. 663. 11 Mart. 212. The members of the board of commissioners made sad work in spelling french and Spanish names, and this appellation of Olivet for Olivot is one of their most successful efforts in that way.

The other ground taken by the appellants rests exclusively upon fact. The evidence satisfied the court below that the land in controversy was covered by the Spanish patent, and after a careful perusal of it, we have come to the same conclusion. The survey made the by United States surveyor was not legal evidence ; but the judge does not appear to have taken it into consideration, and wo are satisfied that (.here is, without it, in the record, abundant evidence to maintain the judgment.

The counsel for the plaintiffs has pressed,upon the court the great danger to be apprehended from giving full faith to surveys made by parish surveyors, in cases like this. The presumption of law is in favor of the correctness of those surveys, when they are proved by the officer who made them ; but that presumtion will of course yield to contrary proof, when such proof is made. No attempt has been made by the plaintiffs to falsify the survey. The plat returned represents the locus in quo as included by the calls of the Spanish patent; the surveyor swears to its correctness; and states in his evidence that he followed the lines and found the marks of the Spanish surveyor. Two old and respectable inhabitants of the neighborhood corroborate this testimony; and the description of the boundaries of the land in the patent itself, shows that, at its date, the lands adjoining above and below had already been granted. This evidence, unimpeached as it stands, appears to us as complete as human testimony can make it.

We do not perceive the dangers apprehended by counsel. Surveyors are the experts of land suits, and we view their plans as the reports of experts are viewed. They cannot make the survey without calling upon the parties for their titles; the parties, when called upon, may, if they think proper, attend the survey, and, when it is returned into court, make opposition to it, and falsify it by any competent evidence. The errors of surveyors cannot prejudice diligent suitors; if they are not diligent, it is not in the power of courts of justice to take better care of them than they choose to take of themselves.

We are satisfied that the that the sovereign had parted with his right to the land in controversy, before the change of government.

That the title of the defendant was placed by the treaty of cession, beyond the reach of the constitutional powers of Congress; and that the patent issued by the United States in favor of the plaintiffs, is, so far as the rights of the defendant are involved, an absolute nullity. See the case of Lavergne’s Heirs, 17 La. p. 230. 2 Howard, p. 318. Judgment affirmed.

       The survey was made under an order of the District Court, in this caso.


text:
    The Police Jury of West Baton Rouge v. Hebert.
    In an action by a police jury against a sheriff to recover the amount of taxes on suits placed in his hands for collection, plaintiffs are not bound to show the amount actually collected by him, as the measure of his liability. On proof by plaintiffs that, the lists of suits on which taxes were due were delivered to him as required by law, it is ior him to account for the amount, and to show that, though due diligence has been used by him, he has lieen unable to'collect.
    Appeal from the District Court of West Baton Rouge, Burk, J.

      H. W. Sherbourne, for plaintiffs,
    cited Bull, and Curry’s Digest, p. 776. s. 1. Ibid. 515, ss. 3, 4. Police Jury v. Bullitt, 8 Mart. N. S. 323. Police Jury v. Fluker, 1. Rob. 389. 1 Pothier, Oblig, 666. Civil Code, art. 3508.

      Heblieux and Labauve, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs seek to make the defendant, a former shei-iff of the parish, liable for the amount of taxes on certain suits. The lists of suits exhibited commence with dates as early as the year 1832, and run to September, 1843. The only witness examined was the clerk ofthe District Court, who went imto office in June, 1835; and who states that while he remained in office he regularly delivered every year to the sheriff the list of taxable suits. The testimony of this witness does not cover all the cases, the taxes for which are sued for; and it appears by the allegations of the petition that the sheriff went out of office in January, 1843. For the period antecedent to the appointment of the witness as clerk, there is no evidence that the lists of taxable suits were duly delivered to the sheriff. For the taxes accruing after he ceased to be sheriff, he-could not be liable- Under the evidence it is left uncertain whether the listfor the year 1842 was placed in his hands; for by the statute the list of each year was directed to be delivered to the sheriff, in the month of January of the succeeding year. See act of 24th March, 1823. V/e ai-e also uninformed as to the amounts claimed in the District Court suits, instituted after the passage of the act of the 8th March, 1841. Sess. acts. p. 71.

In this loose state of the evidence we are unable to test the accuracy of the amount at which the court below fixed the liability of the defendant, and therefore remand the cause. In doing so we think proper to state that, we cannot concur in the argument of defendant’s counsel, that the burden is on the plaintiffs to show what amount the sheriff actually collected, as the standard of his liability. Upon proof by the plaintiffs that the lists as prescribed by law have been duly delivered to the sheriff, the burden is upon him to account for the amounts thereof, and to show that, notwithstanding the exercise of due diligence, he has been unable to collect.

It is therefore decreed that the judgment of the court below be reversed, and that this cause be remanded for further proceedings according to law; the costs of this appeal to be paid by the plaintiffs.


author: Eustis, C. J.

text:
    Craighead et al. v. Hynes, Tutor, et al.
    Under tlie lute judicial system, courts of Probate had jurisdiction, in all suits for partitions in which minors were concerned. Sec. 14 of art. 924 of the Code of Practice, is not confined to the partition of successions.
    APPEAL from the Court of Probates for Iberville, Dutton. J. This was an action for the partition of lands and slaves, in which certain minors were interested.

      W. E. Edwards and L. Peirce, for the plaintiff.

      Labauve, for the appellant.
    The Court of Probates had no jurisdiction ratione materia. Code Pract. art. 924, nos. 14, 15. La. 33. Consent of parties, could not give such jurisdiction. Code Pract. art. 92. 11 Robinson 77. The disposition of art. 924, no. 14, refers altogether to property belonging to successions, and not to property held in common otherwise. Nothing here shows that the property in question, belongs to a succession. The Court of Probates was of limited jurisdiction, and could take cognisance of no case not determined by law. Code Pract. art. 925.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a judgment of partition of a plantation and slaves, in which minors were interested, rendered by the late Court of Probates of Iberville. By section 14th of article 924 of the Code of Practice, courts of Probate had power “ to ordain and regulate all partitions of successions, in which minors, interdicted or absent persons are interested, or even those which arc made by the authority of law, between persons of lawful age and residing in tlie State, when such persons cannot agree upon the partition and the mode of making it.”

By a subsequent act, jurisdiction in partitions was given to the District courts.

Our impression is, that under the latter clause of the above section, courts of Probate had jurisdiction in cases of partitions, in which minors were interested. There is an expression in an opinion given by the late Supreme Court in the case of Gordon el al. v. Dick et al., 15 La. 37, which implies a different construction of this clause; but as it was given aa an obiter dictum, and not as deciding the cause, we do not feel ourselves bound to adopt it. Judgment affirmed.

       The District Courts had jurisdiction of all cases. This was the general rule; and cases taken away from their cognisance, formed exceptions to that general rule. It is for the plaintiffs to show that their case came within these oxeoptions, and was cognizable before the Probate Court. The question is to be tested bv the proper interpretation of art. 924, no. 14 of the Code of Practice. The first part of that articlo declares, that the Probate courts shall have exclusive power “ to ordain and regulate all partitions of successions, in which minors, interdicted or absent persons, aro interested.” This paragraph comprises the partitions of successions, and amounts to an exclusion of all ether kinds of property hold otherwise than by inheritance. Inclusio unius, exclusio est alterius.

      The second branch of the sentence is in these words: “ Or oven those which are made by authority of law, between persons of lawful age and residing in the State, when such persons cannot agree upon the partition and the mode of making it.”
      This article, contemplating all the time the partition of successions, comprises, in the second paragraph, a case that is omitted in the first. The partition of successions is the sole object of the articlo. The first part provides for cases where minors, &e„ are interested; the second, where persons are of full age. The whole article includes all partitions of successions and nothing more ; and the construction givon to the law, by the late Supreme Court, although an obiter dictum, is correct.
      When a succession is devolved upon persons of full age, they may agree as to the mode of partition. Civil Code, art. 1245. But if there aro minors, &c., or if all the heirs, though of age, do not agree, the partition must be judicial. Civil Code, art. 124G.
      The words of art. 924, no. 14 of the Code of Practice, are taken almost verbatim from art. 12 4G of the Civil Code, which relates to the participation of successions.

        Rehearing refused.


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    Driggs v. Morgan.
    Where a case has been submitted to amicable compounders by an agreement filed among the records of the court, it will be conclusive evidence of the terms of the submission, Per Curiam : The records and minutos of a court are the highest and best evidence of its proceedings.
    An agreement between the parties to a suit to submit the matters in dispute to amicable compounders is a contract, and the parties should be held to the observance of the strictest good faith in all proceedings relating thereto.
    Appeal from the District Court of Pointe Coupée, Farrar, J.

      Ratliff and Cowgill, for the appellant. Cooley, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The appeal in this case is taken from the judgment of the District Court, setting aside an award of amicable compounders. The case was last before the Supreme Court, in March, 1845, and is reported in 10th Robinson, p. 120. The litigation between these parties had, on two previous occasions, been adjudicated upon, and is reported in 15 Louisiana Rep. 445, and 37th Ibid. 176. The present suit was remanded by the Supreme Court for a new trial, on the ground that the damages awarded by the jury to the plaintiff were excessive. The jury had allowed the plaintiff the sum of $1,500. In November, 1845, the parties, expressing themselves desirous to put an end to a long and expensive litigation, agreed “to submit all matters and things connected with, or in relation to, the aforesaid suit, known on the docket of the aforesaid court as no. —,” to two persons named “as amicable compounders, to settle the same fully and entirely” between the parties, with full power to appoint an umpire. On the disagreement of the amicable compounders, an umpire was appointed, and an award was rendered, “ that the said líenry B. Briggs do recover of and from the said Charles Morgan, by reason of his complaints mentioned in his petition in cause no. 1280, the sum of $1,500,” &c.

On a motion to homologate and make this award the judgment of the court according to its terms, which were in conformity with the submission, several exceptions were taken to matters of form. Considering them untenable, we deem it unnecessary to give our reasons, and proceed at once to the consideration of that on which the district judge decided the case, by setting aside the qward.

The exception was, that the compounders had exceeded their powers ; a great part of the caso having been dismissed, and the award extending to (ho whole of it. This fact, stated in the exception, is supported by the award itself, which extends to the complaints made in the petition in cause, No. 1280 ; but of any clause limiting the demand of the plaintiff to any part of his different causes of action, the record and minutes afford no evidence. They are (die highest and best evidence of the proceedings, and the danger of violating a rule which gives to them this import, is too obvious to require any comment. The interests of property and of society are identified -with its maintenance. Williams v. Hooper, 4 Mart.N. S. 177. As the case stands, so far as the record is concerned, the compounders did not exceed their powers, and the award is strictly within the pleadings.

In the opinion given by the Supreme Court in which it was determined that the cause should be remanded, the court say : “ It is first proper to notice that the present action, originally based upon three distinct alleged causes of action, to wit: 1st, the wrongful suing out of the writ of injunction; 2d, the illegal arrest and imprisonment of the present plaintiff; and 3d, the wrongful and illegal suing out of a writ of sequestration, was tried below, and is now limited to the cause of action growing out of the arrest and imprisonment of the plaintiff, at the suit of the defendant, for which said plaintiff, having discontinued his demand for damages claimed for the wrongful suing out of the injunction and sequestration, claims in his petition the sum of $5,000 as damages.” The court decided solely on the damages for the arrest and imprisonment, considering it the only matter before them.

It also appears, by the testimony of the gentleman who was of counsel for the plaintiff in this case that, to use his own language, “he moved the court to enter a--, for the sum of $2,500, claimed in the petition for the wrongful issuing of the sequestration, and so much for the wrongful issuing out of the injunction as was then prescribed, to wit, $1,500. This motion was made by witness in open court before the jury had retired, and was mude for tho purpose of reducing plaintiff’s claim to $6,000, viz. $5,000 for false imprisonment, $1,000 for damages under tho injunction.” This testimony is corroborated by a memorandum filed among the papers, which imports that a non-suit Was ordered for these amounts, at the instance of the counsel for the plaintiff.

It appears that the Supreme Court itself was misled, as to the extent of the supposed discontinuance of the plaintiff. For.in the opinion it is expressly-stated that, the demand for damages, in consequence of the injuction, was not before them, but only that for damages for the arrest and imprisonment, whereas the defendant has proved, by his own witness, that the former was reserved to the extent of §1,000. The probability is that the court acted on the statements of the counsel who argued the case before them ; nor is it at all surprising that such a mistake should occur, when we observe the manner in which cases are sometimes presented for consideration; and, in that before us, we have searched in vain even for any record of the verdict on which the cause was remanded; but, as the case is now before uá on the award, we shall proceed to determine it, there being no motion to dismiss the appeal, nor any suggestion of diminution of the record.

The case stands according to the record on the general issue, a plea of prescription having been overruled. The award must stand, unless it can be set aside for some lawful cause. The cause assigned by way of exception is, “ that the compounders acted on more' than was submitted to them. A part of said' suit had been dismissed, and yet they considered the whole, and gave their award thereon.” The submission was most comprehensive in its intendment. It embraced all matters and things connected with, or in relation to, the aforesaid suit, and the claim for relief rests solely upon the evidence we have stated.

Whatever would have been the decision of the court in a case of surprize or mistake, which evidence of .this character might establish, the act of the defendant has presented to us a very different one. tie attended the meeting of the compounders before^whom the witnessess were examined on the original issues, and himself offered a witness whose testimony covered the very grounds, which he now insists were excluded from the’examination of the compounders by the terms of the submission. The witnesses were examined without any objection, aud the proceedings closed on the evidence adduced by both parties. We cannot permit a party litigant to defeat an arbitration, under such circumstances. It would be unjust and unreasonable. It is also to be observed that the agreement of reference to the amicable compounders, contains the following stipulation: that, “ they shall obtain from the clerk of the District Court the record in the above styled and mentioned suit, to serve as the basis of their investigation in the matter referred to them, and shall take and consider as testimony in the cause all the evidence submitted to the court as contained in said record, but either party is at liberty to introduce further evidence.” A large portion of the former testimony related to the damages arising from the sequestration.

The agreement to submit their matters in dispute to arbitrators as amicable compounders was a contract, and, in interpreting it, what better guide can we have thanThe records of the court, and the mode in which the parties themselves understood an'd executed it.

The law on this subject is-well settled. Canty v. Beal, 17 La. 285. Davis v. Leeds, 7 Ibid. 477. The mode of terminating litigation by amicable compounders ought to beUavored, and the parties held to the observance of the strictest good faith in all proceedings having an object in view, in which the public, as“well as the parties, have a deep interest.

It is therefore decreed that the judgment of the District Court be reversed, and that the plaintiff reoover from the defendant the sum of $1,500, with Gosts in both courts.


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    Brinegar v. Griffin.
    In an action, for the-settlement of a-partnership plaintiff cannot proceed by attachment, where, from the nature of the business, it is impossible that he can swear, with certainty, to the amount which will be found due to him on a final settlement. Per CuriamWe do not, however, wish to be considered as deciding that a partner can, in no case of joint-adventure, proceed by attachment. Cases may occur where the business of the adventure is so limited and simple; that a- party may be considered as able to swear to a positive and precise balance.
    The mere bonding of property attached will not preclude the defendant from moving to dissolve the attachment.
    A motion to amend a rule to show cause why an attachment should not be dissolved, by adding a new ground, may Be allowed even after the trial of the rule has commenced, where no issue has been joined in the case, and where the additional ground was based on matter apparent on the face of the potition, and its allowance was not calculated to delay the trial of the rule, nor to take the other party, by surprise.
    Where the business of a particular partnership was transacted ahnost entirely within this State, and the investigation of an important portion of the partnership accounts can be conducted with greater convenience and at less expense here than elsewhere, the mere fact of the partners being residents of another State wilbnot, where the defendant appears in person, deprive our courts of jurisdiction of a suit to settle the partnership.
    Appeal from the District Court of Iberville, Burk, I.

      W- E. Edwards and Labauve, for the appellant.
    The mere fact of the defendant’s being a non-resident, made his property liable to attachment. Code Pract.. art 240, no. 2. The law attaches no condition to the capacity of the attaching creditor, except that he be a creditor, and that his claim be established as provided by the arts. 242 and 243 of the Code of Practice. The court can make no distinction, where the law makes none. The law contemplates that the creditor may himself be a non-resident, and provides how the claim should be sworn to. Code Pract. art. 244. 10 La. 447. The case of Levy v. Levy, 11 La. 577, relied on to dissolve the attachment, is not similar to this case. There the plaintiff, by her own showing, contradicted her oath, and satisfied the court that she did not, and could not, know the amount due by the defendant. la this case, the plaintiff shows that eveiything is in his own knowledge; he makes his own calculations and liquidation of the special partnership, to base his oath upon. 2 Mart. N. S. 326.
    This suit was commenced in the ordinary form, the defendant being present, and cited in person. The attachment is an accessory, and the dissolution of it cannot arrest the progress of the ordinary suit. Code of Practice, 253, 258. 8 Mart. N. S. 352. 14 La. 128.

      Deblieux, for the defendant,
    contended that the attachment should be dissolved and the petition dismissed; 1st,. Because the writ of attachment is designed merely to supply the place of personal service in actions properly brought hefore our courts, and not for the purpose of withdrawing, without necessity, from foreign tribunals, the legitimate subjects of their jurisdiction. 2d, Because the action being for a settlement of a partnership, plaintiff cannnt swear to the amount actually due to him. See 11 La. 577. 3d, Because arts. 253, 258 of the Code of Practice, on which plaintiff’s counsel rely to show that, even if the attachment be dissolved, the suit must stand, are evidently not applicable to a case like the present. These are provisions applying to suits which.might have been brought in the ordinary way, by mere personal service, before a tribunal having jurisdiction, and which could compel an appearance, or supply the want of it by a default. Such is the application of the authority quoted, Wil

      Hams v. Kimball, 8 Mart. N. S. 352. In the case of Gibson v. Huie, 14 La. 128, there was a suit on a contract made here; and although .the plaintiff stated that defendant was a resident of North Carolina, the defendant pretended that he resided in this State; he had answered on the merits, and the cause had been decided xoithout regard to the attachment.

   The judgment of the court was pronounced by

Slidell, J.

This case comes before us on an appeal from a decree dissolving an attachment, and dismissing the suit. One of the grounds for dissolution is that, the suit is for the liquidation and settlement of a partnership, and that in such a case the plaintiff cannot have the auxiliary remedy of attachment, because the ■affidavit indispensable to the granting of this writ cannot pi'operly be made by a ■party, who, from the nature of the case, must be ignorant of the precise amount ■due to him.

For a proper consideration of this subject it is necessary to refer briefly to the affidavit and the petition, in connexion also with ithe evidence received on the trial of the rule. The affidavit, in stating the indebtedness, declares that, the defendant is really-and justly indebted to the plaintiff in the sum'of $2,900, as will be shown in the petition to be filed. The -petition states, that in the year 1845, and in Keutucky, where the parlies both reside, they entered into a partnership for the purchase of a gang of slaves, to be brought'to this State and here sold, for the common account; that they an-ived in Louisiana in the fall of that year, and closed the sale of the slaves in the following spring; that the defendant is chargeable with the proceeds of the property so held in common and sold for the common account, which proceeds said defendant received. A statement is then given, item by item, of the price and proceeds, and of the vendee of each slave. Most of the sales are stated to have been on credit, and that notes and drafts of the purchasers were received by the defendant. In one instance, a sale or barter is charged as having been made :by ¡defendant,” for sugar received and disposed of by him. In some cases, the notes,or drafts are only charged as having been received by the defendant; in others, as having been paid to him. The petitioner further declares that, he has himself received ¡the price and proceeds of divers slaves, and certain moveables belonging to the partnership, amounting to the sum of $14,499 53; and “that, after allowing and charging himself for everything -and all sums of money he is accountable for to the said special partnership or speculation, or to the said David Griffin, the said Griffin remains justly indebted to petitioner in a balance of $2,900; -that he has often demanded an amicable settlement and the payment of said balance from the defendant, who has always refused to do anything.”

The prayer of the petition is as follows: “ That the defendant be cited to appear, and to produce all the claims and demands he may have against the plaintiff, or against the said special partnership or speculation; and that a liquidation and settlement of said speculation may take place; and that, after due proceedings, the defendant be decreed to owe the plaintiff the said balance of $2,900, with interest from judicial demand, &e.” It closes with a prayer for general relief.

This then is a suit for the liquidation and settlement of a partnership, the ascertainment of a balance, and a decree therefor. It is true that the plaintiff professes to have calculated, and to his own satisfaction ascertained, the balance ; but it is quite obvious that the partnership affairs involve mutual items ■of debit and credit, numerous and diversified in their nature, suchas the original outlay of capital, the necessary disbursements for the transportation and care of the partnership property, the ascertainment of collections of the notes and drafts taken, and the enquiry into the faithful gestión of the partnership affairs by the partners respectively. It would seem impossible, under the showing of the petition itself, and especially as it does not allege that any accounts have been rendered, nor any balance of account actually struck by the partners, that the plaintiff should be able to declare with certainty, the amount which, on a final liquidation and settlement of these affairs, will be found due to him. This uncertainty, apparent on the lace of the petition, is, if possible, rendered more obvio&s by a letter of the plaintiff’s, which was offered in evidence by the defendant. In this letter, after suggesting the expediency of avoiding litigation by an amicable adjustment of their affairs, the plaintiff remarks: “It seems to me that in a business of the amount that we did last summer, either the one or the other must be indebted to the other. If I to you, I am ready at anytime to settle,” &c. We do not, however, regard this evidence as necessary to sustain a conclusion which has a sufficient basis in the plaintiff’s petition.

In applying the law to the state of facts thus disclosed, it is necessary to bear in mind that the remedy by attachment is one, which, according to the uniform tenor of decisions, has been strictly construed. To justify the remedy, the creditor must be able to state on oath, expressly and positively, the amount of the sum due to him. However conscientiously the plaintiff may have believed that the liquidation and settlement of their affairs would eventuate in a balance in his favor of twenty-nine hundred dollars, the nature of the case forbids us to consider his affidavit as meeting the rigorous intendment of law providing this onerous remedy. Such was the view taken by the court in the case of Levy v. Levy, 11 La. 581. It is true, as contended by the plaintiff’s counsel, that the circumstances in that ease were stronger in favor of the party moving to dissolve, than those now presented ; but the principle on which that case rests, appears to us fully applicable to the matter now before us. We refer to, and adopt what is there said, as a just exposition of the intent of the Code.

We do not, however, Wish tobe considered as laying down the rule that, in no case of joint adventure can a partner proceed by attachment. Suits may occur )n which the business of the adventure may be so limited and simple in its features, as to exhibit a case where the party might be considered as able to swear to a positive and precise balance. When such a case presents itself, we shall deem the point open to consideration. The mere bonding of the property did not debar the defendant from moving to dissolve the attachment. See the case of Myers v. Perry, 1 Ann. Rep. 372.

The motion to dissolve on certain enumerated grounds, was made at an early .day after the institution of the suit, and before issue joined. Two days after the first motion, and before it was adjudged, the defendant asked leave to amend, by adding the ground for dissolution which we have considered. The court permitted the amendment. We think this was a proper exercise of the discretion of the court. The ground was based upon matter apparent on the face of the petition; it was not calculated to delay the trial of the rule, and does not appear to have taken the plaintiff by surprise, as he did not move for a continuance of the hearing. Our Code has laid down rules on the subject of amendments of the pleadings, but we are not aware that there ar.e any express provisions of law, which, in matters of this nature, restrict the discretion of the judge, where, in his opinion, the amendment, without creating delay, will tend to the furtherance of justice, by restricting within its proper sphere a harsh remedy.

The defendant, who made a personal appearance, also contends that the suit itself should be dismissed. It is true that the parties both reside out of this State, that the contract in which the suit originates, was made in Kentucky, and that the suit involves the liquidation of a partnership. Residence is not indispensable to the jurisdiction of our courts over parties present, even temporarily, in our State. Upon the general question, whether we will take cognizance of all suits for the liquidation of partnerships brought by non-residents against their partners, also non-residents, we express no opinion. When a case is presented of the liquidation of a commercial, or other partnership, involving extended and complicated transactions, conducted abroad, and the partnership having a domicil out of our State, it will be time enough to consider that question. In the present case, the partnership business was to be consummated in Louisiana. According to the plaintiffs’ showing, it was so consummated. In the investigation of a very important portion of the partnership accounts, the proceeds of the property sold, the examination can be conducted with greater convenience and probably less expense, here than elsewhere; and we are not prepared to say that, as to other subjects of evidence and enquiry, the facilities of another forum would preponderate. The plaintiff is clearly, under our laws, entitled to the forum which he has chosen, and we are of opinion that the court below erred in dismissing the suit.

It is therefore decreed that, so much of the decree of the District Court as dissolves the attachment, be affirmed, and that so much of the said decree as dismisses the suit, be reversed; and that this cause be remanded for further proceedings according to law, the costs of this appeal to be paid by the defendant.


author: Kiite, J.

text:
    Decoux v. The Bank of Louisiana.
    Where a plantation on which an order of seizure and sale has been levied, is in possession of aleesee, the sheriff is not authorized to appoint a guardian or keeper for its management and preservation, and consequently can make no charge for the services of such a person, if one he appointed by him.
    A sheriff is entitled to be reimbursed all expenses incurred by him in the preservation of slaves seized under an order of seizure and sale, including compensation for the services of a keeper employed to take care of them on the plantation on which they were at work. Stat. 10 March, 1845, s. 2.
    Appeal from the District Court of Pointe Coupée, Farrar, J.

      L. Jarán, for the appellant,
    cited Code of Prac. arts. 457, 660. Acts of 1845, p. 53, s. 3. Bui. and Curry’s Dig. 441.

      Cooley, for the defendants.
   The judgment of the court was pronounced by

Kiite, J.

The Bank of Louisiana obtained an order for the seizure and sale of a plantation and slavek, situated in-the parish of Pointe Coupée, in virtue of which the property was seized by the plaintiff, in his capacity of sheriff of that parish. Adams, the person in possession of the property, was appointed, on the day of the seizure, the guardian for its management and preservation until the sale. The execution of the writ was suspended by an injunction, in consequence of which the property was not sold until nine months after the seizure, during which interval it remained in the care of the guardian. The plaintiff, in his bill of costs, charged $2.50 a day for keeping the.properfy during that time, and took a rule on the bank to show cause why the account presented by him should not be paid. The correctness of all the charges was admitted, except that for the preservation of the property, which was contested on the ground that no such services were rendered by the sheriff, and no expenses were incurred by him for that purpose. The rule was discharged in the court below, as far as related to the claim for keeping the property, and for the residue of the account it was made absolute. The plaintiff has appealed.

When the sheriff, in the execution of a writ of seizure, takes a plantation, it remains sequestered in his custody until the sale, unless it has been leased or rented ; and he may appoint a keeper to manage it, for whom he shall be responsible. Code of Praet. art. G57. The 660th art. of the Code of Practice, directs that the sheriff shall not remove from plantations the implements of agriculture, the cattle or slaves employed in cultivating or clearing them; but authorises him to appoint a guardian for their preservation. For keepingpersonal property or slaves under seizure, sheriffs are entitled by law to a compensation which is left to the discretion of the court, within certain limits as regards slaves in actual custody. Acts of 1845, p. 53. s. 2. Under these several provisions the sheriff is entitled to remuneration for keeping property Which comes into his custody under seizure, whether the care of it be assumed by himself personally, or be delegated to a keeper for whom he is responsible.

It appears that the plantation was in the possession of Adams, the keeper, at the date of the seizure, under a lease from the mortgagor. It therefore fell within the exception established in the 657th article of the Code of Practice, .and the custody of it was not confided by law to the care of the sheriff, who consequently was not authorised to appoint a guardian for its management, nor to make a charge for such services.

The remainder of the property seized was committed to his custody bylaw, and he was entitled to be reimbursed all expenses incurred for its preservation, and to compensation for the services rendered by the keeper, who was his agent for that purpose. The lower court rejected the claim as unfounded, and the record does not supply us with the means of ascertaining what would be a fair equivalent for the services rendered. The discretion to be exercised by courts on such occasions, must be based on testimony which enables the judge to fix a compensation commensurate with the services. The evidence in the record would, perhaps, have authorized the district judge, under whose immediate eye the proceedings were had, to make an allowance to the plaintiff, but is not such as enables us to award the compensation, with a prospect of doing justice between the parties. We think that justice requires thatthe cause should be remanded.

The judgment of the District Court is therefore reversed ; and it is further ordered that the cause be remanded to the lower court to be proceeded with according to law, and that the defendants pay the costs of this appeal.


author: Slideli, J.

text:
    Cooper et al. v. Polk et al.
    A bill of exchange requesting the drawees, at a certain time after date, to pay* a certain sum to the order oi a third person, and 11 to charge the same to account,” signed by the drawers, binds the latter jointly only, and not in solido.

    It is no objection to a citation served on a curator ad hoc, appointed to represent an absent defehdant, that it was addressed to the absentee. The citation should be served on the curator, and whether addressed tohim, or tothe person whom he represents, is immaterial.
    Where a party takes no bill of exceptions to an order of the court, refusing an application made by him, but proceeds to trial without any objection in that respect, it is a tacit acquiescence in the order, and will preclude him from contesting its correctness on appeal.
    Where a party to an action resides out of the parish in which the courtis held, his adversary cannot compel him to bring his commercial hooks into court. In such case the party might be interrogated and required to annex to his answers copies of Ms accounts, or a commission might be taken out to take the testimony of witnesses by whom the books could be examined and sworn copies made from them; or it might be required that the boolps should be produced before the commissioners, and the authenticity of the books and the correctness of the copies thus ascertained. It would bo the duty of the party, under the order of the court, to give every facility for such an examination of his books.
    APPEAL from the District Court of Lafourche Interior, Randall, J.

      Hall, for tlie plaintiffs. Beatty, for the appellant.
   The judgment of the court was pronounced by

Slideli, J.

This suit is brought upon an account containing several items. For a portion of them it is quite clear that the appellant, William Polk, is not answerable, being debts of T. G. Polk alone. We shall confine our attention to the items which are based upon three bills of exchange drawn by T. G. Polk and Wm. Polk, upon the plaintiffs, and which they contend they accepted for the accommodation of the drawers. These bills of exchange are not obligations in solido; on their face the liability is joint. 5 La. 122. Wm. Polk being sued alone, contended, by an exception, that T. G. Polk should have been made a party defendant. T. G. Polk was not a resident of Louisiana, and was not present in the State. If it be conceded that, in such a case, he was a necessary party, it is evident that there was no other way in which he could be made even a formal party, except by the appointment of a curator ad hoc to represent him. The plaintiffs could not be deprived of all remedy against Wm. Polk, because his coobhgorwas an absentee.

After the exception was sustained, and a curator thereupon appointed to represent T. G. Polk, the appellant then excepted that T. G. Polk was not properly cited, because the citation was addressed to him, and not to the curator ad hoc. The objection seems to us unsound. It was immaterial whether the address was to the curator, or to the person whom the curator represented. It was properly served on the curator, for a service upon T. G. Polk was an impossibility.

At the time of filing his answer, the defendant, Wm. Polk, applied to the court for an order upon the plaintiffs, to produce in open court their commercial books. This order the court refused, but no bill of exceptions was taken, and the defendant subsequently proceeded to the trial of the cause without any objection in this respect. After this tacit acquiescence in the refusal of the order, it cannot be considered here. There is, however, a broader ground upon which the point may be determined. When a party to a cause lives out of the parish where the court is held, we cannot recognize the right of his adversary to comP6^ to bring all his commercial books from his domicil, to the seat of justice where the litigation is pending. It is true that the language of the Code of Practice (arts. 149, 473) is general; but if the interpretation we are asked to give be sound, then a merchant in New York or London might be compelled by his debtor to bring his books to Louisiana. Such a hardship imposed upon litigants, wauld make the relations of a factor with a planter, or of amei-chant generally with his cox-respondents, very onerous, and is not to be sanctioned. The x-ight given by law to a litigant, to draw testimony from the books of his advex-sax-y, must receive a reasonable construction, and may be fully enjoyed without a resort to means which would operate so seriously to the detriment of commex-ce. The defendant might, in the interrogatories propounded by him to one of the plaintiffs, have required him to annex to his answers copies of the accounts; or, if unwilling to rely upon the conscience of his adversax-y, the court might have been called upon to'issue a commission; under it witnesses might have examined the plaintiffs books, and made sworn copies from them. The books themselves mighthave been x-equired to be px-oduced before the commissioner; the authenticity of the books and the coi-rectness of the copies might have been fully ascertained ; and it would undoubtedly have been the duty of the plaintiffs, under the order of the court, to give the fullest facilities to such examination.

We do not consider itnecessax-y to decide upon the exception, raised to the admissibility of certain testimony taken under commission, by reason of alleged defects of form. The joint liability upon the accommodation acceptances is established, independently of that testimony.

The claim by the defendant, that the proceeds of certain shipments made by T. G. Polk, should be first credited upon Wm. Polk's share of the joint liability upon the accommodation acceptances, is cleax-ly untenable.

Judgment affirmed.

      Tho first of the bills of exchange was in these words:

        “ Exchange for $1500. LaGrange, July 11th, 1842. Five months after date of this first of exchange, (second unpaid), pay to the order of D. B. Frierson & Co., fifteen hundred dollars, value received, and charge the same to account.
      THOS. G. POLIC WM. POLK.
      The other two bills were in the same form.


author: King, J.

text:
    Gilbert et al. v. Meriam.
    Where, in an action against the surety of a tutor, plaintiffs rely on a judgment obtained by them against their tutor, defendant may establish the nullity of the judgment so obtained.
    Where an action has been discontinued, it cannot be revived by a rule to show cause,- and, if suchrevivalbe allowed, any judgment subsequently rendered, will he null.
    The action of a minor against his tutor is prescribed by four years, from the time of his majority. C. C. 356-
    The condition of a surety cannot he more oneruus than that of the principal. The surety may avail himself of every defence which his principal could have used, and may plead any prescription by which the creditor’s demand has been extinguished. C. C. 3006,3029,
    Appeal from the District Court of Ibei-ville, Nicholls, J.

      Labauve, for the plaintiffs.
    This is an action upon a tutor’s bond, against the defendant as surety. The only sei-ious defence is the plea of prescription, established by art. 356 of Civil Code. The prescription relied on, is inapplicable to this demand, which is against the surety on the bond, and not against the tutor for a rendition of accounts. 6 La. 161. 1 Mart. N. S, 334. Toullier, 2d vol nos. 1275 — 6. Whether the tutor is yet liable and bound to account, is not the question; but the question is, whether he has accounted and paid ovex-all moneys in compliance with the bond.
    The tutor, as such, took possession of lands, slaves and moveables belonging to his wards, the plaintiffs, and though the action for a rendition of accounts may be prescribed, the demand for a restitution of the property cannot be prescribed but after the lapse of thirty years ; and as long as the plaintiffs have an action for the restitution of such property, an action lies on the bond against the surety. Napoleon Code, art. 2236. Louisiana Code, art. 3476. l’roplongi Trait6 de la Prescription, vol. 2, nos. 472, 487, 488, 489. The defendant should be decreed to pay one-third of the bond.

      W. É. Edwards, for the appellant.
    The judgment of the Probate Court of Ascension is null, and defendant may show that it is so. 15 La. 59.- The action against the tutor, and consequently against his surety, is prescribed byfour years. Civ. Code, art. 356. 10 Robinson, 173. 6 La. 161.
   The judgment of the court was pronounced by

King, J.

The plaintiffs allege that their father died leaving a large succession, which was taken possession of and administered by their tutor, Lloyd Gilbert. That by a decree of the Court of Probates of the parish of Ascension, the succession of the deceased was finally settled, and their shares ascertained to bo $21,445 37, which sum was received by their tutor, who has paid no part of it to them. That for the faithful administration of their estates, their tutor gave á bond in the sum of $26,000, for one-third of which, the defendant, Meriam, became surety, and they pray judgment against Meriam for $8,666 66, the amount of his alleged liability on the bond. The defendant, in his answer, avers that the plaintiffs have received the full amount of their inheritance, from their ancestor; that the alleged decree of the Court of Probates of the {lavish of Ascension is null; and he pleads the prescriptions of four, five, ten and twenty years, in bar of the action. The lower court determined that the right of action of two-of the plaintiffs, viz. A. G. Gilbert and W. H. Gilbert, was prescribed by the lapse of ten year's, fejeóted their demand, and rendered a judgment in favor of the remaining plaintiff Butler Gilbert, from which the defendant has appealed.

The evidence establishes clearly, that more than ten years intervened between the dates at whioh the two eldest of the plaintiffs attained the age of majority and the inception of this suit. ÍFheí youngest brother, Butler Gilbert, became of' full age a little more than six years before the commencement of the suit. The' defendant contends that his right' of action has been extinguished by the prescription of four years, established by the 356th article of the Civil Code. It is urged by the plaintiffs, that this is not an action against a tutor respecting acts of tutorship, nor to compel him to render an account of his tutorship; but a suit to recover an inheritance, which is alleged to have gone into the hands of the tutor, the amount of which has been determined by a final decree, rendered on a suit to account, to whioh the prescription of four years does not apply.

The evidence mainly relied on to sustain the plaintiffs’ demand, is a judgment-of the Probate Court of the parish of Ascension, which purports to settle the succession of Walker Gilbert, deceased. That judgment, it is contended, is null* and that its nullity is apparent upon the face of the record. It was so held to be in the case of Gilbert et al. v. Nephler & Boyle, in which the present plaintiffs were endeavoring to enforce it against third possessors of property derived from Lloyd Gilbert, during the existence of the tutorship. 15 La. 60. The circumstances under which it was determined to be' null, are stated in the opinion-of the Supreme Court referred to. We concur in the opinion expressed by the late court, upon the identical evidence now before us and under similar pleadings, that the judgment is void; and this surety, against whom it is produced as-the evidence of a debt, may avail himself of that nullity in defence. Apart from this judgment, which we must disregard, there is no evidence showing that an account has ever been rendered by the tutor, or that a settlement of the succession of Walter Gilbert has ever taken place; nor is the amount of the plaintiffs’ ©state, received by the tutor, otherwise established.-

The account of sales of the effects of the succession of the deceased has been produced, from which it appears that property to a large amount was sold, the proceeds of which must have been received by the tutor, on whom the administration of the estate chiefly devolved. It is also shown that the estate was largely indebted. No settlement having taken place or account having been rendered, if the tutor were still living, it is clear that the only action that could be instituted against him, would be one to account, and that action is prescribed. Civil Code, art. 356. 10 Rob. 173. 6 La. 162;

The condition of the surety cannot be more onerous than that of his principal;: he may avail himself of every defence that his principal could have used, and may plead the prescription by which the creditor’s demand has been extinguished. Civil Code, arts. 3006, 3029.

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


text:
    Berteau v. O’Brien.
    Where in consequence of the death of a child subsequently to that of the father, the surviving-wife holds in common with the other children an undivided share in all the property of the father, she may, under art. 338 of Civil Code, cause the whole of it to be adjudicated to her, on complying with the requirements of that article. That article does not restrict the right to this adjudication to community property only; it makes no distinction as to the title by which property may be held in common between the surviving parent and the minor children.
    Appeal from the Court of Iberville, Dutton, J.

      R. W. Nicliolls, for plaintiff.

      Sigur, Bonford and Ldbawoe, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, Estelle Berteau, sues her mother, and seeks to avoid an adjudication, made to the latter by the Court of Probates under art. 338 of the Civil Code. She alleges that her father died in 1831, leaving her and three other minor children, the issue of his marriage with the defendant: That one of the children subsequently died at a date left in blank in the petition, and that the three surviving children and the defendant are his heirs, each for one fourth: That the succession of her father Was composed of proper estate and community property: That, on the 16th of January, 1834, an inventory and appraise, ment of the property of the succession were made by order of court, and that all the property was represented therein, and appraised as belonging to the community: That, on the 22d of December of the same year, all the property contained in the inventory was adjudicated to the defendant, at the price of said appraisement, by a decree of the Probate Court, rendered on the advice of a family meeting, in conformity with the provisions of art. 338 of the Civil Code: That this adjudication, so far as it affects the proper estate of her father, is an absolute nullity. She prays for the nullity of the judgment and for the return in kind of the proper estate of her father to his heirs. The answer contains several peremptory exceptions, which the opinion we have formed renders it unnecessary to notice, and also a general denial. The court below gave judgment in favor of the plaintiff, and the defendant appealed.

The plaintiff alleges in her petition the demise of one of her brothers, since that of her father. The time at which it took place is not shown, but the plaintiff has introduced, in support of the allegation of her petition, the inventory, the proceedings of the family meeting, which preceded the adjudication, and also the decree of adjudication. Those proceedings satisfactorily show that >the minor Dorville was dead when they took place, and that, in consequence of his death, the defendant then held in common with her children one undivided ■fourth of that child’s part, in all the property left by his father.

This case is not to be distinguished from that of Harty v. Harty, 8 Mart. N. S. p. 518. It is well known to those who participated in the formation of the Louisiana Code, that no change was intended to be made in the provisions of the act of 1809, under which that case was decided. The very words of the act were preserved in art. 338 ofthe Code. If the legislature had intended to authorize the adjudication of community property only, they would have said so; but as the rule is general, and makes no distinction with regard to the title by which an estate may be held in common by the surviving parent and his minor children, we do not consider ourselves at liberty to make any.

The case of Reeves' Heirs v. Bernard, 13 La. p. 173, is not applicable to this controversy. There the surviving parent had no interest of any kind in the proper estate which formed the subject matter of the adjudication. In this ease the defendant was a joint owner of the property adjudicated, and the adjudication made to her of the whole, does not violate the dispositions of art. 338 of the Civil Code, and must therefore have effect.

For the reasons assigned, it is ordered that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.


text:
    Bach v. The Police Jury of Jefferson.
    Appeal from the District Court of the First District, Buchanan, J.

      Durant, for the appellant. Burthe, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The matter in dispute between the parties being less than the sum of three hundred dollars, it is ordered that the appeal be dismissed, and that the appellant pay costs.