author: IIowe, J.

text:
    No. 1635.
    Martin Jones v. Jacob Worley, et als.
    Plaintiff had leased the bar on the steamboat T. D. nine for one year, from the agent of the owner; before the expiration of the lease the boat was purchased by the Captain (Worley), who forcibly ejected the lessee from the bar and put him off the boat. He brings suit against tho former owner, the former master, and the present owner and master, to recover tho damages he had sustained, alleging a conspiracy between these parties to gain possession of the bar. The last owner of the boat pleaded the exception of domicile, which was sustained by the court below, and the suit dismissed as to him. Held — that, tho warranty by the vendor only extended to eviction, and could not be extended by tho court so as to cover a case of assault and battery; that a conspiracy not being established by the evidence, and tho last vendor and present owner of the boat not being boforo the court in this suit, plaintiff’s demand for damages in this suit must fail.
    from the Fourth District Court of New Orleans. Théard, J.

      Campbell, Spofford <£• Campbell, and Gollens & Wooldridge, for plaintiff; and appellant JEmerson & Crow, Randolph, Singleton & Hardee, and Marr & Route, for defendants and appelleés.
   IIowe, J.

On the twenty-sixth of August, 1865, Mrs. Mary G. Knorr purchased the steamboat T. D. Hiñe, and A. J. Parmele was appointed master. Ou the twenty-eighth of October, 1865, Mrs. Knorr, by notarial act constituted J. R. Shannon her agent with full powers. On the twenty-eighth of October, 1865, while tho boat lay in her home port undergoing repairs, Parmele claiming still to be the master, made a lease of the bar -room of the boat to William Guión for twelve months, running time, at one hundred dollars per month. Guión transferred his rights to other parties who in turn assigned the lease to the plaintiff. On the fourteenth of November, 1865, the repairs being completed, Jacob Worley was made master of the boat. On the eighth of January, 1866, the T. D. Hine commenced atrip to Jefferson, Texas, and the plaintiff went on her in charge of the bar. Upon the return of the vessel and on the twenty-fifth of January, 1866, she was sold to Jacob Worley, and on the same day started on her second trip. When she liad proceeded a short distance up the river, the captain and owner, Worley, forcibly removed the plaintiff from the bar room and put him ashore.

The suit is brought against Mrs. Knorr, Worley, Shannon and Par-mele, charging them with a conspiracy “to take said bar from petitioner and to expel him from said steamer,” and damages are claimed composed of various items.

Worley pleaded to the jurisdiction of the court on the ground that his domicile was in the parish of Jefferson, and his exception was maintained. He is not before us. The case having been tried on the merits judgment was rendered in favor of the remaining defendants, and the plaintiff has appealed.

We do not think that the master of a vessel in the home port, the owner being present, has any authority in law to make a lease of the kind described, nor does the evidence establish a custom in this respect, so uniform, notorious and reasonable as in itself to validate this lease. But it seems that at the time the lease was made Parmele had not been removed by any overt act or declaration of the owner from his position as master, and would probably be deemed to continue to hold that character. 3 Sumner, 145.

lie states that at the time the lease was executed ho made Mr. Shannon and Mrs. Knorr aware of the lease and they made no objection to it; and again, he adds that he informed captain Worley that he had leased the bar and “ had raised some money by it and used the same to have the boat repaired,” by which he perhaps meant that he had in reality raised money in this way and thus used it. Though there is some conflict of testimony on the point, we are satisfied that the lease was ratified by the owner about the time of its date.

But it by no means follows .that the defendants now before us are liable in damages for the tortious acts of Worley. We find no sufficient evidence of the conspiracy alleged by plaintiff. Parmele had nothing to do with it, nor had Mrs. Knorr. Indeed the brief for plaintiff seems to limit the alleged conspiracy to Worley and Shannon. But it will hardly be contended that Shannon conspired in his capacity of agent; and there is no reasonable certainty that he conspired on his own account, or even had any motive so to do.

It is urged by the plaintiff that the sale of the boat to Worley on the twenty-fifth of January, 1866/ was a more simulation in furtherance of the conspiracy, and that this is shown by Shannon’s statement in Ms testimony that the boat was leased to Worley, "but it appears that this leasing took place in November, 1865, and it was probably a charter party of some kind executed some time before the sale. In the absence of this conspiracy it is difficult to see how the plaintiff’s claim can be maintained except against Worley. It is not necessary to characterize his conduct for he is not in court, but whatever may be his liability under the facts we cannot extend the warranty of Mrs. Knorr as lessor so as to cover the alleged violence of her vendee. She warranted against eviction, in the legal sense of that word, and not against assault, battery, or trespass of any kind on the part of Worley.

It is therefore ordered and adjudged that the judgment appealed from be affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 1062.
    A. Dolhonde, Administrator v. Widow and Heirs of William Laurans, deceased.
    The items in the account of an agent are not prescribed by the lapse of three years from their date. Such claims are not embraced in the terms “open accounts0 which by the statute of 1852 are prescribed against in three years; ten years is the only prescription against such a ‘ demand. 17 An. 240.
    from tbe District Court, parish of Jefferson. Gazabat, J.

      If. Blache, for plaintiff and appellant, lioselius & Bhilips, for defendants and appellees.
   Howell, J.

This is an action by the legal representation of an agent against the widow and heirs of a principal, on an account current, running from August, 1859, to September, 1865, to which the defense is a general denial and the prescription of three years.

The plea of prescription was sustained as to a portion of the account and judgment given in favor of plaintiff, as administrator, against the widow and heirs of Wm. Laurans, deceased, for the balance, from which the plaintiff appealed.

The prescription invoked does not apply to any portion of the claim, as the agency continued until the death of Maxent in June, 1865, and this suit was instituted in March, 1866. See 17 A. 246.

The question really is one of evidence, the plaintiff contending that the vouchers and testimony fully support the whole claim, while the defendants invoke the statute of eighteenth of March, 1868, as excluding the application of acquiescence in the account rendered to the principal just prior to his death.

An account current running from August, 1859, to thirteenth of October, 1864, and showing a balance of $3593 57 of the agent was, on this latter date, presented to the principal, Laurans, who was then too ill to attend to business, and who died on the,fourth of the succeeding month and the presumption of acquiescence cannot under the circumstances arise. It is shown however, that Mrs. Laurans subsequent to the death of her husband, expressly acknowledged the correctness of the account rendered on the thirteenth of October, 1864, and she and the other two defendants permitted Maxent to continue as agent to eollect the rents of the property of the succession as before. ' This may not bind the two heirs as to the correctness of the debit side of the agent’s account. But the defendants obtained from the plaintiff, the administrator, the vouchers that wore in his-possession, and on the trial, upon an order of court, they produced "all the tax receipts, and policies of insurance delivered to them by the plaintiff and the account current of thirteenth October, 1864, furnished by Maxent,” which with the account sued on, receipted bills for repairs to the property and extracts of receipt book signed by the deceased and the defendants, were received in evidence "without ‘ objection. These documents with the oral testimony, under the circumstances, must be held to make out the case against the heirs as well as the widow in community.

The main questions presented in the briefs arc the plea of prescription and the operation or application- of the act of 1858, forbidding parol proof of the acknowledgment of a dead person to take a debt out of prescription, neither of which as we have seen is sustained on behalf of the defendants, as the prescription of three years does not apply to actions of this kind.

It is therefore ordered that the judgment appealed from be reversed, and that A. Dolhonde, administrator of L. F. Maxent, deceased, recover of Mary Helen Elizabetli Duplcssis, widow of Win. Laurans, deceased, and Pierre Evariste Laurans and Julia Emma Laurens his heirs, the sum of §2936 93 with legal interest from judicial demand, in the proportion of one-half from the said widow, and the other half from the said two heirs jointly. The defendants to pay costs in both courts.


author: Howelu, J. Howell, J.

text:
    No. 1957.
    Eugene Staes v. Arthur Gastinel.
    In ascertaining the meaning of a statute the rule i^wcll settled, that it should ho so construod, if possible, that no clause, sentence, or word, shall be- superfluous or insignificant. 1 A. 162.
    The statute of 1866, page 117, § 1, amending the act of 1855, providing for tho trial of contested elections in the parish of Orleans, gives to any one of, and to all the six District Courts then in existence, jurisdiction over all suits for the contest of the elections of all officers elected for and in the parish of Orleans, with the right of appeal to the Supreme Court as in other cases. *

    The offioe of Recorder of the Second District of the parish of Orleans is an office of the parish, and the election may he contested before the Sixth District Court of the parish of Orleans. Acts of 1856, page 117.'
    from tbe Sixth District Court of New Orleans. Cooley, J.

      JS. Mlleul, for plaintiff and appellant; JS. Bermudez, for defendant and appellee,
   Howelu, J.

This is a contested election case, in which the plaintiff has appealed from a judgment sustaining exceptions to his petition. Both parties were candidates for the office of Recorder of the Second District of New Orleans at the election held on the seventeenth and eighteenth of April, 1808, and the plaintiff alleges that he was legally elected to-said office and that the majority of votes apparently received by his opponent was the result of frauds committed to his prejudice, which he details at length in his original and supplemental petitions. Several grounds of exception were filed at different times and the one sustained by the judge a quo is in the following words, to-wit: “That there is no law giving the Sixth District Court any jurisdiction over a contested election of Recorder of the Second District of New Orleans.”

The law which it is contended authorizes the suit reads as follows: “That the forty-first section of an act entitled ‘an act relative to elections,’ approved March 15, 1855, be amended and re-enacted so as to read as follows: that when any person shall desire to contest tho election of any officer of, for or in the parish of Orleans, or of the First Judicial District composed of said parish, or any district in said parish, he shall, within ton days after tho close of election, give written notice thereof to the appropriate party, which notice shall especially set forth all the, grounds of contest, and shall, within the same space of time, present a petition to the judge of any one of the six District Courts of New Orleans. The judge shall proceed without delay to examine tho grounds of contestation, and may, on the application of either party, order a jury to try tho issue, from whose verdict an appeal may be had to the Supreme Court as in ordinary cases.” Acts 1856, p. 117, § 1.

The original section forty-one of the act of 1855 (session acts, page 415), provided for contesting the election of only those officers in tho parish of Orleans, to wit: the sheriff, coroner and clerk, confined the trial thereof to the First District Court of New Orleans, and made the decision in the lower court final. As amended it provides for contesting the election of any officer of, for or in the parish of Orleans, gave jurisdiction thereof to all the District Courts in New Orleans and confirmed the right of appeal. From the language of the section it was evidently the intention to enlarge the right and opportunity of con-testation, and make it general in the parish of Orleans, embracing any and all officers elected by the people in said parish.

It is evident as a matter of fact that tho defendant is an officer in the parish of Orleans. Those who voted for him were voters in the parish of Orleans and the district for which he was to be elected is geographically in the parish of Orleans. We know that a State tax collector is elected for precisely the same district and by the very same voters. In the nature of things there is no good reason why the law in question should refer to the one and not to the other. But besides this, there is a well settled rule of interpretation which must make this amended section embrace the defendant, to wit: A statute should be so construed, if possible, that no clause, sentence or word shall be superfluous or insignificant. 1 A. 162; 2 N. S. 32; 4 N. S. 322; 1 R. 233.

The law matter had some object in using the word in, as' well as the words of and for. If he intended only to include the officers of or for Hie parish, he would not have used the word in also. Such a construction would make the word in superfluous and unmeaning. Every officer of or for the parish is an officer in the parish, but every officer in the parish is not necessarily an officer of or for the parish as a distinct division of the State.

The other grounds of exception have no force. If the allegations of the petition are true, there is a cause of action. The election was held by virtue of the one hundred and fifty-fourth article of the Constitu-tut-ion, being a part of the ordinance by which the civil government of this State was established. The defendant having been á candidate; at said election cannot be heard to question its legality. 13 A. 301.

The military commander did not assume to d.ecide contests of elections, but referred the parties expressly to the courts.

It is therefore ordered that the judgment appealed from be reversed, that the exceptions of defendant be overruled, and the cause remanded to be proceeded in according to law; appellee to pay costs of appeal.

On Application for Rehearing.

Howell, J.

In refusing the application for a rehearing in this case, we deem it proper to say that from inadvertence the motion to dismiss the appeal submitted with the case on its merits, was not formally passed on, and we consider it totally unnecessary to open the judgment in order to dispose of it, as none of the grounds on which it is based have any foundation in law or fact.

As to the first and second grounds it is sufficient to say that the appeal was taken on motion, and the certificate of the clerk is in due form, and hence no citation nor assignment of errors is necessary; the exceptions on which the judgment appealed from was rendered present the questions on which the opinion of this court was sought.

The third and fourth grounds are not well taken for reasons assigned on the motion to dismiss in the case of Fish v. Collens, not yet reported.

As to the fifth ground, it is immaterial whether the reasons at length given by the. judge for his decree are copied in one part or another of the record. They seem to have been the reasons for a judgment in another case, and the entry made in this case referred to them as the reasons for the judgment herein, and they are in the transcript.

Rehearing refused.


author: Wyly, J.

text:
    No. 1519.
    Pendery & Naylor v. The Crescent Mutual Insurance Company on New Orleans.
    A paper purporting to be a bill of lading, not signed by tbe captain or clerk of tbe boat, or any any one authorized to siga tbe, same, is not admissible in evidence in a suit for tbe . recovery of damages from tbe insurance company where loss has occurred by tbe destruction of tbe steamer. In such a case tbe document was inadmissible until proved by competent testimony.
    Tbe evidence of tbe captain of tbe vessel as to tbe contents of a manifest, and the copy of tbe manifest are inadmissible until tbe loss of tbe original manifest is shown by evidence.
    Testimony taken by commission in another State of tbe Union is inadmissible in tbe courts of thi6 State unless tbe record of the testimony shows tbe authority of tbe commissioner who executed the commission.
    from the Fourth District Court of New Orleans. Théard, J.

      W. W. Handlin, for plaintiffs and appellees, ill", ill. Cohen, for defendants and appellants.
   Wyly, J.

This is a suit to recover the insurance on twenty 'hales of cotton which the plaintiffs claim were covered by the open policy of the consignee, Fred. Delbondio, with the defendants.

They aver that on twenty-sixth February, 1866, they shipped said cotton to said consignee on the steamboat Mary Hcinn, which was destroyed with all its cargo and papers coming down Red river on or about twenty-eighth February, 1866; that they had made arrangements to consign their cotton to said Delbondio, who had an open policy with the Crescent Mutual Insurance Company, of New Orleans, to cover all the cotton consigned to them; that they sent with the boat a letter notifying the consignee of the shipment, which was destroyed with the boat, and afterwards they informed him thereof by telegram.

Tbe defendants pleaded a general denial.

Judgment was rendered in favor of plaintiffs, and the defendants appealed.

There is no doubt that Fred. Delbondio, the consignee, had an open policy with the defendants, but the question is, was the cotton shipped as alleged, and was it covered by the policy ?

This is a question of fact. The evidence to support it was objected to by the defendants — the court overruling the objections, received the evidence, and the defendants took four hills of exceptions.

The evidence, if admissible, establishes tlie fact and justifies the judgment; hut if the hills of exceptions were well taken tlie proof does not sustain the judgment.

Plaintiffs offered a paper purporting to he a bill of lading without any proof of the signature or that it had been signed by the captain, clerk, or any one authorized to sign the same; the defendants objected, the objection was overruled, and the defendants took a bill of exceptions.

The instrument being an act under private signature, and not signed by the defendants, should not have been received without proof of tlio signature. The hill of exceptions was well taken.

The testimony of James Keniston, captain of the Mary Heinn, was objected to on the ground that his depositions purport to have been taken before a notary public of Hamilton county, Ohio, under a commission addressed to any judge or justice of the peace or Louis-, iana commissioner, and there was no proof of his official capacity, or that he was authorized to take the testimony under the commission.The bill of exceptions to this evidence.was, in our opinion, also well taken. Barelli v. Lytle, et al. 4 A. 557; McMicken v. Stuart, 10 M. 571.

A bill of exceptions was also taken to the reception of the evidence of Captain Suris, offered to prove the contents of a manifest, and to the reception of the copy of manifest offered, on the ground that the testimony as to the contents and the copy of the manifest are not the best evidence, there being no proof of the loss of the original. We think the objection a good one, and the court erred in receiving this evidence. '

The bill of exception to the deposition of James M. Davidson was also well taken, there being no proof of the-authority of the notary or of the person pretending to be notary, in Ohio’, to take the evidence. 5 N. S. 460 ; 10 M. 571; Baine v. Willson, 18 L. 59; 4 A. 557.

The evidence objected to was improperly received by the court, and without it, the plaintiffs have failed to make out their case.

It was a stipulated condition of the insurance that the assured should make monthly returns of all cotton insured. It appears from the return of the consignee, the said Delbondio, on sixth April, 1866, that the twenty bales for which insurance is now claimed, was not insured; no premium has been paid the defendants thereon.

The record does not, in our opinion, contain sufficient legal evidence to establish the facts necessary for plaintiffs’ recovery.

It is therefore ordered that the judgment appealed from be avoided and annulled, and and it is now ordered that there be j udgmént as of nonsuit and that plaintiffs pay costs of both courts.

Rehearing refused.


author: Howe, J.

text:
    No. 1617.
    Morris, Tasker & Co. v. John G. Fleming, Agent.
    The allegation and testimony oía purchaser of goods of an overcharge by the vendor is not entitled to much weight when made for the iirsfc time after suit is brought, nor is the testimony of the purchaser admissible to show that othér merchants would have made a larger discount than that allowed by the seller. -.. .
    from the Fourth District Court of New Orleans. Théard, J.

      Breaux & Benner, for plaintiffs and appellees. Ban&olph & Singleton, for defendants and appellants.
   Howe, J.

The defendant has appealed from a judgment rendered against him for goods sold and delivered.

The only question in the case seems to be whether the discount of thirty per cent, allowed by the bill of plaintiffs was sufficient. The goods were sold and delivered to defendant in February and April, 1866, and a witness for plaintiffs téstiñes that the goods were furnished at 6 as low á rate as they would have been furnished to any Other buyer front that rifarket at that time.” The defendant does not appear ’to have raised any objection to the prices charged until suit was brought against him, many months after he had received the goods and the bills had been rendered to him.

Under such circumstances we do not think that Ms allegations of an overcharge and his own testimony that the discount should have been from thirty-five to forty per ceut. are entitled to much weight. Nor did the Court err in excluding the testimony he offered, to prove that other merchants allowed a discount at the rate of thirty-five or forty per cent.

It is therefore Ordered that the judgment appealed from be affirmed with costs.


text:
    No. 1602.
    H. Maillard v. Max Nihoul.
    In a sale of goods in Now York to a merchant in New Orleans by samples presented by an agent iü ÍÑéW Orleans, to be delivered in New Orleans in quality equal to the Samples presented, the sale is not complete until tho goods are delivered, and they are at the risk o'f the seller until deliyory takes placo.
    from the Fifth District Court of New Orleans. Leaimont, J.

      Fellows & Mills, for plaintiff and aqipellant, Jolm IT. New, for defendant and appellee.
   Howell, J.

Plaintiff alleges that at the city of New York, on twenty-Seventh September, 1866, he sold a bill of goods amounting to $721 82 to the defendant, at whose request they were shipped to New 'Oriéáns, ahd for which he asks judgment with seven per cent, interest.

The defendant answers denying that he purchased said goods, and averring that in New Orleans samples were shown him by an agent of plaintiff, and he agreed to take the goods if they corresponded with said samples, it being no sale until he had the opportunity of examining and accepting the goods, which he never had, as they were never delivered in New Orleans. The testimony of plaintiff’s agent is, that while in New Orleans, in July and August, 1866, he took an order from defendant on plaintiff for a general assortment of confectionery, to be shipped by steamer from New York and paid for in thirty days from date of the invoice; that the goods were shipped on twenty-eighth September, 1866, on the Evening Star and a bill of lading with the invoice forwarded by mail to the defendant; that at the time of taking the order he left a copy thereof with defendant, which contains all the conditions on which it was given; that the goods were sold from •samples, hut there was no agreement that they should correspond with the samples; it was a sale if they were equal to or better than the samples — and those 'shipped were superior. Nothing was said about ihtíüfufiC'o.

Another witness states that he presented the hill sued on to defendant, who said “he had no money and could not pay just then.”

A witness for defendant states that in September or-October, 1866, he was present in defendant’s store when plaintiff’s agent exhibited some samples and defendant purchased the goods on the samples, stipulating that they should arrive in good order and-be exactly similar to the samples. Nothing was said about insuring, but the goods were to be delivered at defendant’s house according to the agent’s authority.

The defendant testified that in September or October, 1866, the agent came into his store and asked him to come over and look at some samples. lie went with the agent to the St. Charles Hotel where he chose from the samples shown the goods he wanted, which the agent promised to deliver in New Orleans exactly similar to the samples, defendant reserving the right to return them if they were not so. The goods wore never received. No 'one else Was present; and nothing was said about insurance. He orderéd about seven hundred and twenty pounds of goods.

The evidence is somwhat conflicting, but it seems that the negotiation or agreement was made in New (Means instead of New York, as alleged by plaintiff, that the goods were sold from Samples shown defendant, were to be shipped from New York to him in New Orleans, a delay for payment was granted, and the goods were never delivered.

Under these conditions and the circumstances of the case the goods must be considered at the risk of the seller until the purchaser had an opportunity to ascertain if they were the goods he purchased, otherwise there is no object in purchasing by samples.

It is fairly inferred from the testimony of plaintiff’s agent that the goods were sold on the suspensive condition implied by the exhibition of and sale by samples in New Orleans, when the goods were at the time in New York or perhaps not manufactured. He says it was a sale if the goods were equal to or better than the samples, but he does not say that the determination of this question was left by the defendant to his sole judgment.

The judge a quo did not erf in giving judgment for the defendant;

Judgment affirmed,


text:
    No. 891.
    Abat & Cushman v. L. G. Atkinson.
    In a written contract of sale of a lot of one hundred bales of cotton between A and B the following stipulations appear:

      First — A declares that he sells to B 100 bales of his cotton crop then on his plantation.

      Second — The cotton was to be delivered at Bandleson’s Landing or at some other convenient point on the river. Suit is brought by B to enforce the performance of the contract, and a writ of sequestration issued, and a few bales of cotton on the plantation in the seed was sequestered by the sheriff; a fi.fct. was issued on a judgment in favor of the wife against A, and the same cotton was seized by the sheriff.
    Held — That as B had no privilege on the cotton, and the sale not being completed by delivery, the weighing and counting of the bales being essential to perfect the sale, the seizing creditor must hold the cotton as against the sequestration.
    from Fifth. District Court parish East. Feliciana. Posey, J.

      Pace, Poster & P. T. Merriclc and Gross & Hardee, for plaintiffs and appellants, J. H. Muse, for defendant appellee.
   Wyly, J.

In the year 1862 plaintiffs made a contract in writing with the defendant to purchase from him one hundred hales of his cotton crop then on his plantation averaging four hundred pounds per hale, more- or less, the said cotton to he delivered at Kandleson’s Landing or some other convenient point on the river. In consideration of this contract the plaintiffs paid to the defendant thirty-four hundred dollars in cash.

This suit was instituted on sixteenth of August, 1865, to enforce the contract and recover possession of the cotton or its value. Petitioners allege that the defendant, Atkinson, has sold and appropriated a considerable amount of the cotton and acted in bad faith with them. They therefore prayed that a writ of sequestration issue, directed to the sheriff to seize and take into his possession “all the remaining cotton on the premises of said Atkinson or elsewhere, if to he found, or so much as will amount to said one hundred bales, and to hold the same subject to the order of the court,” etc. On the same day the sheriff seized and sequestered five hales of cotton, more or. less, in the seed on the premises of the defendant and appointed him keeper thereof.

Mrs. A. Boon, wife of the defendant, Atkinson, having a judgment against her husband for a large amount seized on all his personal property on the premises, including the lot of seed cotton sequestered by the plaintiffs; the sheriff having refused to sell the cotton under her execution she took a rule on him to show cause why the proceeds of the cotton levied on should not be applied, when sold, to the satisfaction, pro tanto, of her judgment.

In answer to the rule the sheriff showed that the cotton was sequestered by the plaintiffs, and being in his hands by legal process he could make no legal delivery thereof to a purchaser were he to sell it under the ft. fa. of the plaintiff in the rule.

On the trial the rule was consolidated and tried with this suit. The court rendered judgment in favor of plaintiffs and against tlie defendant for the value of the cotton, and decreed that the privilege of the seizing creditor, Mrs. Adelia Boon, wife of the defendant, on the cotton seized by her, was superior to that of jdaintiffs, and rejected plaintiffs’ claim as to the cotton sequestered.

Plaintiffs have appealed.

The simple question presented in this case is, was the contract of sale declared upon consummated by the delivery of the cotton ? If there was a delivery the contract of sale was perfected, and, of course, the cotton on the premises of Atkinson was not subjected to the seizure of his judgment creditors. Tire title to personal property, at least so far as it affects third'parties, only passes by tradition.

The written contract must be examined to’ ascertain whether there was an actiral delivery. From two expressions in the contract we are satisfied there -was no delivery. One is where he, Atkinson, declares he sells one hundred bales of his cotton crop then on his plantation. He did not sell all his cotton crop on his plantation. He only sold part, one hundred bales of his cotton crop. '

For aught that wre know there may have been five hundred bales on the place. If one hundred bales had been destroyed by fire on whom would the loss have fallen? How could it be ascertained which of the bales belonged to the plaintiffs and which remained to the defendant?

We think in this case the sale was not completed, the bales not having been weighed and counted. The other expression in the contract which satisfies us there wras no delivery is the stipulation that the cotton was to be delivered at Randleson’s Landing, or at some other convenient point on the river. This was never done because the petition alleges that the defendant had sold and appropriated the cotton or a considerable part thereof. From the evidence we are satisfied there was no tradition or delivery of the cotton, and that it remained at the risk of the defendant, Atkinson, in his possession.

The question is not whether the plaintiffs have a privilege on the cotton in controversy superior to the seizing.creditor’s privilege; they have no privilege whatever; they have sequestered it as being the owners thereof. The sequestration gave no privilege; it merely detained the cotton till its ownership could be determined.

If there was no tradition or delivery there was no sale, but an obligation to sell which could not operate upon the property of the defendant so as to place it beyond the reach of the executions of his judgment creditors.

The testimony of the witness D. C. Hardee- does not establish the sale of the six bales of cotton in the seed on the day it was sequestered, although he states there was a positive contract that “ this six bales was to be credited on the writ.” This does- not establish a verbal sale independent of the written contract sued on, for the simple reason it lacked the essential elements of a contract of sale, there being no price, no delivery. It was a mere consent of the debtor that the proceeds of that part of his property when sold might be applied to the satisfaction of plaintiffs’ claim. This consent could not defeat the right of his judgment creditor to execute her writ upon the property. We are satisfied the cotton in dispute was never delivered to the plaintiffs; it was not in condition to be delivered according to the evident intention of the parties at the time the contract was executed ; that contract stipulated for the delivery to be made at a shipping point on the river, and we can not presume that the parties contemplated the delivery of seed cotton at a shipping point; they evidently intended it to be in merchantable bales ready for shipment; besides reference to the weights of the bales was mentioned in the contract. •

It is therefore ordered that the judgment appealed from be affirmed with costs.

(Mr. justice Ilowell was recused in this case.)


text:
    No. 1680.
    H. A. Battles v. C. C. Simmons, Mrs. Bracy, Garnishee.
    Tlie garnishment process can not be used as a substitute for a direct revocatory action, nor will the strict rules relative to the answers of garnishees be applied to answers to interrogatories whose only tendency is to assail titles to property.
    from the District Court parish of East Feliciana. Posey, J.

      Cross <& Hardee, for plaintiff and appellant, P. Hardest)/, for appellee.
   Howell, J.

The plaintiff having on ninth February, 1867, obtained a judgment for $944 13 with eight per cent, interest from December 1, 1861, against the. defendant, C. C. Simmons, issued thereunder a garnishment process on twenty-third March following against Mrs. Mary C. Bracy to whom he propounded the following interrogatories:

Interrogatory 1. “Have you in your possession or under your control any property, rights or credits, notes or money, or property of any description belonging to the defendant, Charles C. Simmons, or are you indebted to him in any amount1? If you answer yea, does the value of the property, rights, etc., as aforesaid, or the amount of your indebtedness equal the amount of the judgment of the plaintiff in this suit against Simmons ?

2. “Have you, since the dose of the war bought any property of any description from the said Simmons? If you have, state if you havo paid for the same, and if so, what amount and how you paid for the saíne, giving a minute and exact description of the said property and a statement of the valúe thereof.

3. “ State your account with the defendant since'the close of the late war, say May 1, 1865, up to the time of answering these interrogatories, with specific items of debit and credit, showing what you have received from tlie said defendant, under what kind of a contract you' have received the same, how yon have paid for the same, giving a thorough and definite account of your transactions with the said defendant.

4. “Have you not since the war bought a buggy and horse from the defendant? And if you answer yea, state what you paid and how you paid for the same. If you say no, state if you have ever had said horse and buggy in your possession or either of them, and under what title you have had them or cither of them. Have you not got them or either of them in your possession, and if so, under what title 9

5. “ Have you ever been made the depositary of any money of the defendant, C. C. Simmons, obtained from his father’s estate in West Feliciana or otherwise 9 If so, give a full account of the said deposit, and if you have paid over the same, state when and how, stating your account with items of debit and credit arising out of the said deposit.”

These interrogatories, with the petition, were on the twenty-fifth March, 1867, served on Mrs. Bracy personally, who, without excepting to any of them, filed the following answers on the first April ensuing, to wit:

To interrogatory 1. “In answer to the first says no to all the inquiries embraced therein.

2. “To the second'she says that she did, since the close of the war, buy some property of the said Simmons,' but she paid him the cash for it, and owes him nothing. The amount of the property purchased and the value will be found'of record in the recorder’s office.

3. “To the third she says that she has had no account with the defendant more than already stated.

4. “To the fourth she says that since the_war she bought a buggy from the defendant and paid him two hundred dollars. She had the said buggy in possession under the said purchase, the title by said purchase, has not said buggy in possession now, but is still hers.

5. “To the fifth she says she has never been the depositary of any money of defendant from any party.

(Signed) ‘ MARY C. BRACY.”

The plaintiff then ruled the garnishee to show cause why judgment should not be rendered against her for the amount of his claim against the defendant for the reasons that her answers to the interrogatories are evasive, not categorical nor responsive to the questions therein contained, that' she has wholly neglected to answer the second interrogatory and to give a full exhibit of her transactions with the defendant, that the answer to the fourth interrogatory is not responsive, that the answers to all the interrogatories show that there had been a series of transactions between the said parties within the time embraced in said interrogatories, but that sbe lias failed to state her account with the defendant called for by the third interrogatory; that the third, fourth and fifth, interrogatories served to call forth definite facts in order to ascertain if the said garnishee was under real legal liability to the defendant, and that her failure to answer the same amounts to confession that she owes the defendant sufficient to satisfy plaintiff's judgment.

Several motions and amendments were made to the rulings on which bills of-exceptions were reserved, but which under the view of the case which we have taken, it is unnecessary to notice.

This appeal is taken from the judgment dismissing the above rule of plaintiff.

Keeping in mind the legitimate object and function of the attachment and garnishment process it is not difficult to see that the answers of the garnishee in this case are responsive to all the pertinent and material questions propounded. The plaintiff in his petition alleged that the garnishee had property belonging or was indebted to the defendant, and under the act of 1839, articles 246 and 247 C. P., he was authorized to propound such questions as will show what property and tiie nature and value thereof belonging to the defendant the garnishee had, or what sum she was indebted at the date of the service of the interrogatories to the defendant. To all such questions she gave responsive categorical answers, denying that she owed the defendant anything or had in her possession or control any property belonging to him. To the other questions tending covertly to attack her titles to property or show fraud in any of her previous transactions with the defendant, she gave answers which can not properly he construed into a confession of having any property of the defendant or being indebted to him. On the contrary she asserted the reality of her purchases from and dealings with the defendant, and informed the plaintiff where the record of them existed. If her answers wore untrue he could have traversed them. If her purchases were fraudulent he could attack in the regular mode. The garnishment process can not he used as a substitute for a direct revocatory action, (17 L. 555; I 11. 435; 2 A. 99; 3 A. 651) and the strict rules prescribed by articles 362, 363 and 364 C. P. relative to the answers of garnishees, will not be applied to answers to interrogatories, whose only tendency is to assail titles to property. In this case the answers show that the garnishee is not indebted to tbe defendant and has no property belonging to him, and the plaintiff has not disproved them.

Judgment affirmed.


author: Wxly, J.

text:
    No. 2111
    Armstrong and others v. Thomas K. Davis.
    Irregularities in the proceedings of the Probate Court ordering the execution of a will, and tha relative nullities of the titles to property cannot be inquired into collaterally. '

    from the Sixth District Court, parish of St. Helena. - Ellis, J.

      JO. M. JBipliin and Me Vea t& Hu n ter, for plaintiffs and appel-lees, Wilson <& JBradleij, for defendant and appellant.
   Wxly, J.

In 1828, Moses Gordon bought two tracts of land adjoining each other in the parish of St. Helena from Samuel Lanier, and duly recorded his titles. One of the tracts containing three hundred and thirty-six and eighty-five-hundredths acres was acquired in the lifetime of Ms wile Mrs. Rutha Wells; the other was acquired after her death. At the time the sale to Gordon was made tire'said Samuel Lanier had five children issue of the marriage with liis deceased wife.

Moses Gordon held possession of the land thus purchased, through his brother who remained over ten years in peaceable and undisturbed possession. Moses Gordon died and his brother continued in possession of the lands for his succession till 1839, when lie also died. In a few years thereafter some of the heirs of Gordon’s vendor; Samuel Lanier, took possession of the land, claiming a right thereto as heirs of their mother whose interest had not been sold, she Raving died before the sale. This right however only attached..to the tract acquired in her life time.

In 1846 W. II. Kemp who married one of the heirs,' purchased by notarial act, the claims of Pearson W. Lanier and Guión II. Lanier two other heirs of the said Samuel Lanier and his wife Mrs. Rutha Wells. They described the land in the act of sale as “ being the same tracts of land sold by their father Samuel Lanier' to Moses Gordon, senior, on the twenty-fifth of April, 1828, and therein'fully described,” etc. The consideration given these two heirs wás two hundred dollars, they selling all their “interest and, title to said lands, which they derived in and through their mother the said Rutha Wells, they only warranting- the title against themselves and their heirs;” ’ '■ '

Such were the stipulations in the act of sale which was duly recorded. In 1848 W. H. Kemp and wife sold all their interest in said lands, by notarial act, to the defendant Thomas- K.'Davis, describing in the act the “lands as being the same which Samuel Lanier sold to Moses Gordon on the twenty-fifth of April, 1828.” They only warranted the title so far as the same was vested in them by inheritance and by purchase from the other heirs Guión and P. W. Lanier; they expressly refused to “warrant the title against the heirs of Gordon or Armstrong.” ■ ■ '

On the twenty-second of October, 1866, the plaintiffs claiming to be the heirs and legal representatives of Moses Gordon and his wife Mary A. Gordon who had died in Wilkinson county, Mississippi, sued the defendant to recover the lands.

The answer denied generally the allegations of plaintiffs, denied that they are the heirs and legal representatives of Moses and Mary A. Gordon as alleged, .averred that the land in controversy belonged to the defendant, and pleaded the prescription of ten, twenty and thirty years.

The case was tried by a jury and on the verdict the court rendered judgment in favor of plaintiffs for all the lands claimed except one-half of the tract of three hundred and thirty-six and eighty-five one-hundredths acres acquired by Samuel Lanier in the life time of his wife Rutha Wells.

The defendant has appealed.

The plaintiffs in their original petition claimed as heirs and legal representatives of Moses and Mary A. Gordon who died without issue in Mississippi; they afterwards amended their petition and claimed as testamentary heirs. The court permitted the amended petition to be filed and the defendant took a bill of exceptions. .We can see no objection to the amended petition, the same being rather a specification of what kind of heirs they claimed to bo, than an alteration of their pleadings, at least the amendment is not inconsistent with their original demand.

Plaintiffs are collateral relations of Mary A. Gordon and the testamentary heirs of Moses Gordon, both of whom dying in Wilkinson county,- Mississippi, .whore their wills were duly probated.

On the first of May, 1867, the plaintiffs presented to the Probate Court of the parish of St.'Helena, certified copies of the wills of Moses Gordon and Mary A. Gordon, and the probate thereof from the Probate Court of .Wilkinson county, Mississippi, and the same was ordered to be registered and . executed in said parish and State, in conformity with article 1682. of the Civil Code.

Plaintiffs offered.as evidence of title the wills of Mary A. Gordon and Moses Gordon thus.ordered to be executed in the Probate Court of St. Helena parish, .and the same was received by the court, the defendant taking a bill-of exceptions thereto on the ground that they had not been duly proved, and ordered to be executed by a competent court, and because there was an interlineation of some words in the certificate from the Probate Court of Mississippi.

We think the bill of .exceptions was not well taken; irregularities in the proceedings ordering the wills to be executed, and relative nullities in the title cannot be inquired into collaterally. 5 M. 661; 6 N. S. 361; 2L. 70: 15 L. 537; 2 A. 451.

The wills establish the titles of plaintiffs to all the land owned by Moses Gordon in the parish of St. Helena. The evidence in the record fully sustains the verdict of the jury. The defendant’s vendors only claimed to. sell him the interest in the lands which they derived from their mother ilutha Wells, which was only her half of the community in the three hundred and thirty-six and eighty-five one-hundredths acres. The very deeds under which he holds describes the lands as the same sold by Samuel Lanier to Moses Gordon, and contains a clause that his vendors will not “ warrant the title against the heirs of Gordon or Armstrong.” The titles of Moses Gordon to the land in question have been recorded in the parish where it is situated since 1828, and ho held peaceable possession thereof through his brother till 1339.

The defendant went into possession of the land only in 1848, and he has not held the same by a just title. The prescription therefore of ten and twenty years cannot avail him, and that of thirty years has not been acquired.

From a' careful examination of the evidence, the plaintiffs have, in our opinion, made out their case beyond doubt.

It is therefore ordered that the judgment appealed from be affirmed with costs.


text:
    No. 2121.
    Mrs. Caroline Simmons v. A. S. Norwood, Sheriff, &c. and H. A. Battles.
    On the trial of an injunction suit hy the wife against the seizing creditor of her husband, a brother of the husband, a witness was asked by defendant on cross examination the following question : “ What did your brother say to you in relation to the sale from him to Mrs. Bracy, (the donor) alter it had been passed ?” Held — that the answer was properly excluded, on the ground that the husband could not make a disclosure against the interest of his wife.
    In a controversy about the title to real estate which is attacked on the ground of simulation, any title, on its face translative of the property, is admissible as rebutting testimony against the charge.
    from the Fifth Judicial District Court, parish of East Feli-ciana. Posey, 3.

    IF. P. Kernan and"2’. P. Lyons, for plaintiff and appellee. Gross efi Hardee and Pace, Poster & P. 1. Merrielc, for defendants and appellants.
   Howe, J.

The plaintiff claiming to be the owner of certain property by donation from her foster mother, enjoined its sale under a writ of fieri facias issued against the property of her husband by the defendant Battles. It appeared that the property in dispute was conveyed by the husband, Simmons, to the foster mother, Mrs. Bracy, and by the latter transferred by donation to the plaintiff in injunction.

The answer, after denying that the plaintiff had any legal judgment of separation from her husband, alleged that the plaintiff held title by a base simulation; that the sale by Simmons to Mrs. Bracy, and the donation by the latter were transparent disguises, intended by the parties to shield the proper'y from execution, and prayed that the injunction might be dissolved, with .damages.

The case was tried before a jury, and verdict given for plaintiff. From a judgment rendered on this verdict the defendants, after an unsuccessful motion for a new trial, have appealed.

Our attention is first called to three bills of exceptions reserved by defendants on the trial. The first shows that the defendants propounded to a witness for plaintiff, a brother of her husband, upon cross examination, the following question: What did your brother say to you in relation to the sale from him to Mrs. Bracy, after it had been passed.” The plaintiff objected on the ground that the husband could not make a disclosure against the interests of his wife, and the court .sustained the objection. We are not prepared to say that this ruling was erroneous. As a general rule the declarations of a husband can no more be admitted in a case of this sort than could his own testimony. Green-leaf on Ev. § 341.

But it is contended by defendants that such declarations may be received as part of the res gestae. It is true that some declarations may be where they are really part of the res gestae and are not viola-tive of marital confidence. The cases of Averson v. Lord Kennard, 6 East. 188; Walton v. Greene, 1 Carrington & Payne 621; Gelchuel v. Bale, 8 Watts (Pa.), 355, are familiar illustrations. But in all these cases it will be found that the declarations of the husband or wife whether admitted for or against the interest of the other, were re» gestae. The same appears to have been the case in Smalley v. Laurence, 9 Rob. 210. But we cannot go so far as to concede that the question objected to in this case was properly an inquiry in regard to res gestae. The witness is not shown to have been present when the sale was passed. What Mr. Simmons said after the sale, might have been said months and years after, and so, forming no part of those contemporaneous words which characterize and illustrate the principal act, might have misled the jury.

By the second bill of exceptions it appears that plaintiff offered an act of sale from Mrs. Bracy to C. C. Simmons, and parol testimony of Mrs. Bracy relating to such sale, to which the defendants objected on the ground that no such title had been asserted. The court thinking it would go to contradict the allegations of simulation made by defendants’ answer, admitted the testimony. The defendants excepted on the ground that such evidence could only be received to rebut. We perceive no error in the ruling. Plaintiff was put on proof of the reality of the sale and donation. The testimony was relevant to the issue thus forced upon her, and we do not feel authorized to disturb a verdict merely upon a question as to the order of proof.

The last exception was reserved to a portion of the charge of the District Judge, in which at the request of plaintiff, he read to the jury the article 2455 of the Civil Code. The objection was that this article relates purely to delivery as between vendor and vendee, and has no application to what is required to complete a sale as to third persons. But the next document in the record shows that at the request of the defendant, the court charged the jury that if they believed from tlm evidence that the property described in tlie act of sale was not delivered, tlie sale was not completed, so far as tliird persons are concerned. It seems quite certain tliat tlie latter of these instructions must have neutralized any supposed injurious effect produced by the former.

Upon the merits of the case we are not prepared to disturb tlie verdict of tlie jury, it not being so evidently contrary to law and evidence as to demand such action on tlie part of this court.

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


author: Ludeling, C. J.

text:
    No. 1509.
    Paul Marcelin v. His Creditors. — Opposition of Widow G. Sutterlin.
    In an opposition to the account filed by the syndic of an insolvent the record of a suit between the syndic and a third party is not admissible to prove that the opponent is not the owner of the notes on.which the opposition is founded, nor is the briof of counsel for the insolvent, in other proceedings, admissible on the trial of the opposition of the account of the syndic.
    The payment of interest on a promissory note up to a particular date, and an extension of the time of the payment of the principal to that date, will interrupt prescription.
    The mortgage ai*l vendor's privilege on real estate are not impared by the sale of the property by a syndic of the insolvent, and the holder of the mortgage and privilege is entitled to first preference on the proceeds of the sale alter paying the expenses of the sale.
    from the Third District Court of New Orleans. Felltnoes, J.

      Alpli. Ccmonge, for opponent and appellant. F. Filleul and O. F. Schmidt, for syndic and creditors, appellees.
   Ludeling, C. J.

It appears that Paul Marcelin and Joseph Al-brecht purchased a certain lot with the improvements thereon from one May, and to secure tlie payment of the price they executed their joint obligations with a mortgage arid vendor’s privilege. Marcelin failed, and B. Saloy was appointed syndic of his estate.

The syndic caused the undivided interest of Marcelin in the lot of ground aforesaid to he sold, and he filed an account and tableau of distribution wheioby he proposed to distribute the proceeds of the sale. The widow Sutterlin opposed the tableau. She alleges that she is the holder and owner of the two notes executed by Marcoliu and Al-brecht for the price of tlie before mentioned lot, and that her-claim is entitled to he paid out of the proceeds of the sale of the property in preference to all other debts, except the expenses of the sale.

Her opposition was dismissed by the District Court, and she has appealed. The record contains several hills of exceptions, to which our attention has been directed.

First — The syndic offered in evidence the record of a suit between Saloy, syndic, and Albrecht, to prove by the allegations in Albrecht’s answer that the notes did not belong to Mrs. .Sutterlin. 'This was objected to on tlie ground that the record was res inter alias acta, she not having been a party to that suit.

The objection was overruled and the evidence was received. The judge erred. The objection should have been sustained. The allegations in the answer of Albrecht were not even sworn to, and if they had been, Mrs. Sutterlin never had an opportunity to cross examine Albrecht. She was a stranger to the proceedings.

Second — The brief of counsel of Marcelin was offered in evidonce by the syndic and was objected to by the opponent on the same ground urged against the reception of the records above mentioned.

The court overruled the objection and received the evidence. That was wrong. There existed no privity between Albrecht and the opponent. It is difficult to conceive how the admissions of Albrecht or of his counsel could affect a third party.

Third — Albrecht’s testimony was offered by the opponent and it was objected to by the syndic on the grounds that he was interested and that he was estopped from giving any testimony contrary to, or inconsistent with, a previous allegation or admission made by him in the suit of Saloy v. Albrecht. The court sustained the objection and excluded the evidence.

There is no proof in this record to show that Albrecht is pecuniarily interested in the suit. The second objection docs not merit serious consideration. The evidence should have been received. It is unnecessary to examine the other bill of exceptions. The prescription of five years pleaded against the notes cannot be sustained.

On the fifth of March, 1862, the interest on one of the notes was paid up to the twenty-fifth of March, 1863, and on the other up to the fourth of March, 1863, and the terms of payment of the notes were extended to these dates. The opposition was filed on the twelfth of September, 1866.

The evidence convinces us that Mrs. Sutterlin is the legal holder and owner, by purchase, 'of the notes whereof she seeks to enforce the payment. They are secured by a mortgage and vendor’s privilege on the property sold by tjie syndic. The mortgage and privilege were not impared by the sale or transfer of the notes, after maturity, and they attached to the proceeds of the sale of the property mortgaged.

The rank of the opponent’s privilege is superior to all other privileges on the proceeds in the hands of the syndic, except those granted in favor of the expenses necessary to effect the sale of the property, 11 An. 469; 18 An. 721. Succession of P. 0. Lauve, 2 R. 381; 1 R. 446; C. C. art. 3234.

It is admitted in the record that Mrs. Sutterlin has received from the proceeds of the sale of the interest of Albrecht in the lot, four hundred and forty-eight dollars and ninety-eight cents more than was due by Albrecht. This reduced her claim to two thousand dollars, with eight per cent, per annum interest on one thousand dollars from the fourth of March, 1863, and on one thousand dollars from twenty-fifth March, 1863, subject to a credit of four hundred and forty-eight dollars and ninety-eight cents pn the twenty-first day pf January, 1867,

It is therefore ordered, adjudged and decreed that the judgment of tho District Court be avoided and reversed, and that there bo judgment in favor of the opponent, Widow G. Suttorlin, against the syndic of Paul Marcelin for two thousand dollars, with eight per cent, per annum interest on one thousand dollars thereof from fourth March, 1863, and on one thousand dollars thereof from twenty-fifth day of March, 1863, subject to a credit of four hundred and forty-eight dollars and ninety-eight cents on the twenty-first day of January, 1867. It is further ordered that her mortgage and privilege be recognized ns superior in rant and that her . debt be paid in preference to tho following claims set forth in the tableau, to wit:

For three certificates of mortgages on sundry pieces of real estate...:... $ 43 00

Clerk’s costa in suit of Saloy v. Albrecht. 78 75

Sheriff’s costs in same suit..'. 42 20

J. Lamarre’s charge for brief in same case_■. 24 00

E. Filleul and C. E. Schmidt, attorney’s fees, in suit of Saloy v. Albrecht. 700 00

Attorney’s fees in the insolvency since first account. 300 00

B. Saloy’s mortgage claim. 885 00

It is further ordered that the tableau thus amended bo homologated, and that the syndic pay the costs oí both courts.

Rehearing refused.


text:
    No. 1637.
    Eliza W. Latham v. Daniel Hicky.
    Wltere a party demands tbe rescission of a sale, lie must, as a condition precedent, return, or offer to return, the consideration which he has received.
    Courts of justice will not extend relief to a party against his own contract without exacting striot justice from him to his adversary.
    from the Fourth District Court of New Orleans. Théard, J.
    P. U. Morgan, for defendant and appellant. Lacy & Maries, for plaintiff and appellee.
   Ludeling, C. J.

The plaintiff sues to rescind the sale of her interest in the estates of her grandmother and grandfather, on account of the non-payment of the price. The defense is, that large sums have been paid to the plaintiff on account of the purchase, and that she has not returned, or offered to return the amounts received by her.

There was judgment rescinding the sale and reserving to plaintiff the right hereafter to claim from the defendant the difference, if any should exist, between the amount she may realize as heiress and the price of the sale. The defendant appealed.

The evidence shows that the plaintiff sold her right of inheritance, nominally, for $18,000, but, in reality, for such sum as would represent the true value of the estates, when it would be finally settled. The estates are yet unsettled. The evidence makes it probable that the present value of the plaintiff’s share in the estates is less than the amounts she has already received from the defendant, and we would presume, in the absence of all evidence, that the sums given to her by the defendant, after tho sale, were payments on the only debt due by him to her, and not loans. But the uncontradicfced testimony of the defendant leaves no room for conjecturo. He swears positively that the sums given to her, after tho sale, were payments on account of the price of the purchase.

A party demanding tho rescission of a contract must return, or offer to return tho consideration received by him. It is a settled principie in courts of equity that relief will never be extended to a party against his own contract, without exacting from him strict justice to his adversary. This is a condition precedent to be heard. 3 N. S. 460; 4 La. 198; 19 La. 283 ¡ 2 R. 180 ; 5 R. 65 ; 6 R. 450.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, and that there be judgment dismissing the plaintiff’s action as in case of non-suit. It is further ordered that the plaintiff and appellee pay tho costs of both courts.


text:
    No. 2235.
    L. P. Harang, Michael J. Hauck, subrogated, v. John T. Plattsmier et al.
    A notarial act of mortgage lias no effect against third parties until it is registered in the office of the Recorder of Mortgages for tho parish where the property is situated. Acts of 1855, 2io. 274, sec. 1, page 335.
    Wtoefe'tfcfeo Separate mortgages have been executed on the same piece of property at different dates, and tho last of the three is recorded first, and the property has been sold to pay them, tho proceeds must be applied by preference to the payment of the mortgage first recorded. The fact that the last, mortgagee had notice of the existence of the other two mortgages of prior date will not avail,
    from the Seventh District Court of the parish of Orleans. Collens, J.

      Sravghn & Ogden, for plaintiff and appellee, Frank Haynes and T. A. Bartleite, for appellants.
   Ludeling, C. J.

On the twenty-fourth of April, 1867, John T. Plattsmier executed before A. Mazureau, a notary public, an act of mortgage in favor of Charles G. Baquié for §2250 and interest. The notes thus secured by mortgage were indorsed by M. J. IIauck for the accommodation of Plattsmier. On the third December, 1867, Platts-mier executed another mortgage on the same property in favor of Michael J. Hauck for §1900. On the thirty-first day of December, 1867, still another mortgage was given on the property by Plattsmier in favor of Weaver to secure a debt due him for $1717.

In this last act of mortgage the two first mortgages are referred to as existing on the property.

The property mortgaged lias been sold, and the contest is over the proceeds thereof. The two first mortgages wero not recorded until after Weaver’s mortgage. It appears from the evidence that Weaver had knowledge of the existence of the two first mortgages. Under the circumstances, can he take advantage of tire want of registry of the two first mortgages ?

The acts of the General Assembly, No. 285, approved on the fifteenth March, 1855, declares “that acts, whether they are passed before a notary public or otherwise shall have no effect against third persons but from their registry.” § 9. Another statute, No. 274, entitled “an act relative to registry,” declares that “no notarial act concerning immovable property shall have any effect against third persons until the same shall have been recorded,” etc. The second section directs how and where the acts shall be recorded, and it provides further “ that all sales, contracts and judgments, which shall not be so recorded shall he ■utterly null and void, except between the parties thereto. The recording may be made at any time, hut shall only affect third persons from the time of the recording.” Acts of 1855, page 385.

“This is the last expression of the legislative will upon the subject, and it is clear, precise, and contains no exception or qualification.”

Whether the laws be good or bad is immaterial; courts are bound by them, and must determine the rights of litigants in accordance with their provisions. The lawgiver, it would seem, was detenhined to settle the vexed question, whether knowledge was equivalent to registry in Louisiana, and he declared that it was not. “All sales, contracts and judgments, which shall not be so recorded, shall be utterly ■null and void, except between the parties.” It can not be pretended that Weaver was a party to the mortgages in favor of Baquié or Hauek. They were therefore null as to him, and. could not affect his rights.

We concur in the views expressed by Mr. Chief Justice Merrick in the dissenting opinion in Swan v. Moore, 14 An. 838. See also 7 N. S. 662; 2 La. 125; 4 La. 241; 6 La. 541 ; 11 La. 342 ; 3 R. 160; 6 R. 314; 9 R. 14; 11 R. 56; 1 An. 249 ; 2 An. 598, 788; 6 An. 772; 4 An. 269.

The view we have taken of this case makes it unnecessary to notice the bill of exceptions.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, and that there be judgment recognizing the mortgage in favor of W. D. Weaver as firs't iu rank, and entitled to be paid out of the proceeds of the sale of the mortgage/I property in the hands of the sheriff by preference. It is further ordered that the plaintiff pay the costs of both courts.


author: LudeliNG, C. J.

text:
    No. 1480.
    W. H. Hire v. City of New Orleans.
    Officers of the city of Now Orleans wlio received their appointments while the city and State were under the control of the military authorities were removable at pleasure. Mandell v. The Mayor and City of Now Orleans, 21 An. page D.

      lx. PPEAL from the Sixth District Court of New Orleans. Duplantier, J.

      Fellowes & Mills and Alfred, Shaw, for plaintiff and appellee. IT. J. Leovy, City Attorney, for appellant.
   LudeliNG, C. J.

The plaintiff sues for $10,125, with interest from fifteenth May, 1800, being for salary as coroner for the parish of Orleans, from the first of April, 1885, to the fifteenth of May, 1866, at the rate of $9000 per annum.

The city pleaded a general denial, and averred that if the plaintiff was ever coronor he held his appointment under the military authority, and he was removable at pleasure. That he was duly removed on the first of May, 1865, and his successor qualified and and entered upon the duties of his office shortly afterwards. The defendant further alleged that the salary of the office was reduced from $9000 per annum to $6000 on the third of April, 1865, and that the amount due plaintiff for salary from third April to the first of May was tendered to him, but he refused it.

The facts of this case bring it within the principles governing the cases of D. E. Mandell v. The Mayor and City of New Orleans, and The State ex rel. Handlin v. The Auditor of the State of Louisiana, recently decided.

It appears, from the evidence in this case, however, that for a portion of the time, when he was in office, the plaintiff has not been paid, that is, from third of April to the first of May, 1865, when he was removed.

It is proved that on the third April, 1865, the salary of the office was reduced to $6000 per annum, hence the city owes the plaintiff five hundred dollars, the salary for one month. The prescription of one year pleaded in this case, is inapplicable.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of' the plaintiff for five hundred dollars, with five per cent, per annum interest thereon from the first of May, 1865, till paid, and the costs incurred in the District Court, and that the plaintiff and appellee pay the costs of appeal.

Rehearing refused.


text:
    No. 1010.
    Peter Marcy v. Citizens’ Mutual Insurance Company.
    Where the order of appeal has been granted on petition the appellee must bo cited, otliorwlse the appeal will be dismissed on motion.
    from the Sixth District Court, parish of Orleans. Duplan-tier, J.

      Buchanan & Gilmore, for plaintiff and appellee, L. Oastera and A. & JIT. Voorhies, for defendant and appellant.
   Wyly, J.

Appellee moves to dismiss this appeal because he has not been cited according to law, the appeal having been granted on petition and not on motion in open court, and also because the appellants »have voluntarily executed the judgment by’paying the same and by agreeing to discontinue the appeal after the same had been granted.

There is no evidence in the record that appellee has been cited and this court will notice at any time the want of proper parties to the appeal. 20 A. 37.

After the order of appeal was granted the parties thereto entered into the following agreement, viz: “The judgment having been satisfied in the sheriff’s office, it is now agreed that the appeal bo discontinued.” This was signed by the attorneys of record for both parties.

Under the circumstances the motion to dismiss must prevail.

It is therefore ordered that this appeal be dismissed at appellant’s costs.

• Eeliearing refused.


author: IIowell, J.

text:
    No. 1647.
    Jeannet Quertier & Co. v. Succession of Charles Hille et al.
    Where real estate has been specially mortgaged, or the vendor’s privilege has been duly recorded to securo the payment of the-price, aud the purchaser dies and his succession is opened in the Probato Court, an order of seizure and sale may issue from a court of ordi. nary jurisdiction against tho’ succession, to enforce the mortgage rights, and the property mortgaged be seized and sold,’ and'the samo tribunal that authorizes the sale has jurisdiction over tho proceeds thereof, and those entitled to them may claim them in such court, where their rights must he established. ■ '
    Under the homestead law the surviving widow and children of the deceased husband have a superior mortgage and privilego on the proceeds of the sale of the property of the husband to the extent of ono thousand dollars over all other creditors, except the vendor’s privilego and tho expenses of tho sale. She may assert this privilege in a suit between tho other mortgage creditors and the purchaser of tho property before the court that granted the order of seizure and sale.
    a PPEAL from tbe Second District Court of New Orleans. Thomas, j.

      Uornor & Benedict, for plaintiffs and appellants. A. Ganonge and Cyprian Dvfour, for appellees.
   IIowell, J.

In January, 18G2, real property belonging to tbe successions of Joseph Allen and Charles .Allen, was sold under executory process in this suit for a debt due plaintiffs as first mortgagees, by tbe partnership which had existed between the said Allen & Hille. After satisfying plaintiff’s demand a balance of $1852 88 of the proceeds remained. Francis Reynolds, as second mortgage creditor of said firm of Allen & Hille, and the administrator of Charles Hille, in January, 1864, toot a rule on the imrchaser, Louis Gerteis and Mrs. Marie Louise Allen, widow of Joseph Allen, and natural tutrix of the minor Allen, to show cause why said balance of $1852 88, with eight per cent, interest, should not be paid to them, the movers in the rule. In this proceeding, in which a curator ad hoo was appointed to represent Mrs. Allen, a final judgment was rendered in this court in January, 1866, affirming the judgment condemning Gerteis, the purchaser, to pay Reynolds $983 09, with interest at eight per cent, on one-half thereof from the twenty-ninth November, 1858, and on the other half from the twenty-ninth November, 1859, up to the date of final payment, and giving a non-suit as to the right of the representatives of the successions of the said two debtors to the balance of said purchase price. See 18 A. 65.

Reynolds issued execution on this judgment, and caused the property purchased by Gerteis to be seized, whereupon Gerteis, in May, 1866, enjoined the sale thereof, on the ground that since the rendition of the said judgment in favor of Reynolds, Mrs. Allen had instituted suit against him in the Sixth District Court of New Orleans for a sum of $926 44, to be paid with first privilege out of the balance of $1852 88 in his hands, and for the payment of which she claims a judgment against his said property. And, alleging that he can not be made liable beyond the price of his adjudication, he tenders in court the said balance due upon his property, and cites Francis Reynolds, widow Joseph Allen, J. P. Moore & Son, and Nicholson & Co., claiming privilege thereon, and asks the court to distribute the same among them according to their respective rights.

Reynolds answered that his judgment could only be satisfied by Ger-teis on full payment without regard to any contesting claims, all of which he denied, as well as all the allegations of the petition, except his judgment and execution, and prayed for damages. Moore & Son pleaded the general issue, denying specially Mrs. Allen’s claim to any of the fund deposited, alleging that Gerteis is responsible for interest thereon from the day of adjudication, and asking to be paid the residue after paying Reynolds. Mrs. Allen, as widow and tutrix, intervened as third opponent, claiming in her own name one-half of the fund deposited, by virtue of the privilege and mortgage securing her dotal rights, and in the event of her said claim being rejected she demands for herself and her minor child, who are in necessitous circumstances, the said sum under the homestead law. Default was taken as to Nicholson & Co.

By consent of parties, and without prejudice, Reynolds withdrew one-half of said fund loss fifty dollars, and tlie contest is in relation to-the half alleged to ho subject to the claim of the widow, or that of the widow and minor.

Judgment was rendered maintaining the injunction, discharging Ger-tois from all liability to the .defendants, canceling their privileges and mortgages resting on the said property purchased by him, and ordering the balance in the hands of the clerk, less the costs, to be paid to the curator of the widow, who was intcrdictodponding the proceedings, and the tutor minor; from which Ecyuolds appealed, and in this court Moore & Son join in the appeal.

On the trial below Reynolds moved to strike from the record the intervention and third ox>position of Mrs. Allen, and to refuse to hear her herein, on the grounds :

“First, That she has no interest in this matter, which is a contest between Reynolds and Gerteis, into which no third party can be drawn.

“ Second, That Mrs. Allen, if she lias any cause of action, must assert it in the succession of her deceased husband, which is proved to have been opened, and cannot intervene here until her claim has been finally liquidated in her said husband’s succession.

Third, That said intervention and opposition comes too late, after all litigation between Reynolds and Gerteis has closed, and Reynolds has a final judgment in his favor, and stands with his execution, in the premises of his debtor by the final decree of the tribunal of the last resort.

Fourth, That the claim of the minor child of said Mrs. Allen is subject also to all of the foregoing objections.’’ ',

The motion was overniled, and a bill of exceptions reserved:

I. The interest which Mrs. Allen has in this matter is manifest. She had instituted suit against Gerteis, the purchaser, for a portion of the fund deposited by him in this proceeding, and upon which she claims a privilege and mortgage, and to which others make claim also. C. P. 300, 301, 401, 40?, 403.

II. As the law permits succession property to bo sold under an order of seizure and sale from a court of ordinary jurisdiction, it permits those entitled to the proceeds thereof to, claim them in such court, where their rights thereto must be established, or a transfer thereof bo made to a court specially vested with jurisdiction of the distribution of any residue. It may be, so far as this bill of exceptions is to bo considered, that she has already liquidated her claim in the mortuary proceedings; but she is claiming a high privilege and mortgage on this particular fund, and must be heard.

III. The litigation between Reynolds and Gerteis, to which Mrs. Allen was not a party asserting the rights here involved and in the same capacity, cannot conclude her. Having his -execution upon the property of Gerteis is evidence that the fund, upon which .Mrs. Allen asserts a, privilege and mortgage, lias not yet passed to Ms (Eeynolds’) possession, and that she has the opportunity to pursue it. The former proceeding, reported in 18 A., x>. 65, did not determine finally the rights of the widow and minor. The question whether or not they were really parties to that proceeding was not raised; and it seems from tho case as reported, and from the record thereof now before us, that Mrs. Allen, as widoio and natural tutrix, was represented by a curator adhoc, appointed on themotion of Eeynolds himself. He then contended that G-ertcis was bound to retain in his hands the residue of the purchase price for tho benefit of tho parties interested, and that his payment thereof to tho sheriff was no payment in law, upon which the issue was made and decided; but no question was made as to the dotal rights of the wife or tho homestead rights of the widow and child. They are not too late as long as they have not concluded themselves, and tho fund subject to their rights may be reached by them, which is now the case.

IV. The foregoing applies to the claim of the minor. The District Judge did not err in entertaining tho intervention and opposition of the widow and tutrix.

This brings us to the consideration of tho claims to the balance still in tho hands of the clerk of the court a qua.

The only property owned by the widow and minor, or either of them, at the date of the death of Allen or since, is the judgment of the wife against said Allen, her husband, recorded twenty-first January, 1860, in the parish of Orleans, and which proves to be valueless, as she intervened in the act of mortgage to Moore & Son, and renounced all her rights in their favor, and which renunciation inured to tho benefit of Eeynolds (10 E. 159, 12 A. 778), while they, tho widow and minor, arc shown to have been at the death of Allen, and to bo yet in very necessitous circumstances. According to tho terms of the homestead act, they have a preference over all other debts, except those for the vend- or’s privilege and oxpenses incurred in selling the property.

We think, under the circumstances, the District Judge made a proper disposition of said fund.

Judgment affirmed.

Eehearing refused.


author: Wxlt, J.

text:
    No. 1646.
    Succession of W. J. McArthur.
    Tho functions of the attorney for absent heirs ceases -when the heirs present themselves, and are recognized and put into possession of the succession by order of the court.
    from the Second District Court of New Orleans. Thomas, J.

      If. 0. Dunn, attorney for absent heirs, appellant, W. W. Sandlin, attorney in fact, appeEee.
   Wxlt, J.

On the tenth April, 1867, Eobert J. Duffy was appointed curator of Hie vacant succession of Wm. J. McArtliur, and M. C. Dunn, Esq., was appointed attorney of absent lieirs.

On the eighteenth of April the curator filed an account and tableau showing the assets and liabilities of the succession, praying that the same be homologated, and ho be authorized to settle the succession in accordance therewith.

The attorney of absent lieirs filed an opposition to this account, com;-.plaining of the excessive amounts allowed the creditors respectively, except the item of twenty-five dollars allowed him for fees a6 attorney of absent lieirs, which he averred was not equal to the value of his services, the same being worth one hundred dollars.

In the mean time, to wit, on the twenty-seventh of April, 1867, Augustus E. McArthur, as sole surviving parent of the deceased, and as guardian of liis minor children, was recognized by the court as sole surviving heir of the deceased, and ordered to be put in possession of the property of the succession..

The heirship was fully proved, the curator and the attorney of absent heirs cross examining the witness.

On the same day- the said Augustus E>. McArthur appointed William W. Ilandlin, Esq., attorney in fact, conferring upon him full power to collect, receipt for and settle with the curator of the estate of William J. McArthur, and specially authorizing him to dismiss all oppositions to the tableau, and to have the attorney of absent heirs dismissed, and to allow all the claims on the tableau to be paid. And the said McArthur on the same day appeared before Kobert- J. Kcr, notary public, and made due and legal acknowledgment that ho signed and executed the power of attorney for the purposes therein specified as his voluntary act.

On the twenty-seventh November, 1867, a full and complete settlement was made with said agent of Augustus E. McArthur, and a sum of money paid over to him. It was stipulated that all the claims on the tableau should be allowed, and the opposition of the attorney of absent heirs be dismissed. This covenant fully carried out the object of the order requiring the heirs to be put in possession.

Notwithstanding the settlement as aforesaid, the attorney of absent heirs continued his opposition, which was .finally overruled by the court, and the account of the curator homologated.

The attorney of absent heirs has appealed from the judgment homo-logating the account, allowing fifty dollars fee to him, find also from the judgment recognizing the heirs, and ordering them to be put in possession of the property.

The creditors have been paid, and the property turned over to the heirs by order of the court.

We cannot see by what authority tho attorney of absent heirs continued his opposition. After the heirs had appeared and appointed an attorney at law and attorney in fact to represent them, after they had been recognized as the heirs, and ordered to be put in possession of the property^ the duties of the attorney of absent heirs terminated. He had no one else to represent. Those for whom he was appointed to act had appeared, been recognized as the heirs by the court, and had made a settlement for themselves with the curator.

There are no allegations that there are other heirs in fraud of whose rights the settlement complained of has been made.

We think the court very properly overruled the opposition of the attorney of absent heirs, and homologated the account.

It is therefore ordered that the judgment be affirmed with coots.


text:
    No. 2154.
    State of Louisiana v. George A. Fosdick.
    TIio act of the Legislature of 1855, authorizing tho imposition of a license tax ol one thousand dollars on each insurer or insurance company not chartered by the State, and only im-v poses a license tax oi five hundred dollars on each insurance company chartered by tho laws of the State, is not in conflict with that provision of the constitution which requires that taxation shall be equal and uniform. 10 An. 402.
    An agent of a foreign corporation domiciliated and doing business in this State, cannot involco the inhibiting clauses of the Constitution of the United States against acts of the Legislature which it is alleged discriminate between citizens of this State and those of the other States of tho Union.
    from the Seventh District Court, parish of Orleans. Gollcns, J.

      H. 0. jyiVblc, for plaintiff and appellee. Randolph, Singleton & Brown, for defendant and appellant.
   Wyly, J.

The defendant has appealed from a judgment against him for the amount of his license as insurance agent for the year 1808.

He avers that tho act of the 15th March, 1855, authorizing said license tax, is unconstitutional, unequal, unjust and oppressive. That it imposes a license tax of $1000 on each insurance company or insurer not chartered by this Slate, and only $500 on each insurance company incorporated by the laws of this State. He contends that this distinction is' made between these two classes in violation of article 118 of the Constitution, and that as agent of the Queen’s Insurance Company of Liverpool and London lie is aggrieved by this unjust discrimination.

The constitutionality of this law was examined by this court in the cases of the State v. Ogden, and the State v. Lathrop, 10 A. 402, whero it was held that the Constitution has not deprived the Legislature of tho power of dividing the objects of taxation into classes; it merely requires that the burden be equal upon all those included in the same class. “ That the class of insurance offices liable to the thousand dollar tax under the statute in question is entirely different from that which is liable to the five hundred dollar tax. If this State has thought fit to recognize foreign charters of incorporations to the extent of permitting foreign corporations to transact business in tlieir corporate name, through agents within our limits, the Legislature had the undoubted right to attach what conditions it thought fit to the privilege.”

It might have permitted the insurance companies incorporated under the laws of this State, and have excluded entirely the agents of foreign corporations, and all others.

It imposes an equal burden upon tbe agents of all tbe foreign insurance companies, and tbe defendant is not subjected to any greater 'license than others belonging to tbe same class.

It does not discriminate between tbe citizens of this State and those of other States, as tbe defendant alleges, giving tbe former greater privileges and immunities than tbe latter; but if it did, tbe defendant, as agent of an English corporation, cannot invoke tbe inhibitory clause of tbe Constitution of the United States in relation thereto. Tbe citizens of all classes are permitted to pursue tbe occupation of insuring by incorporating themselves into companies for that business under tbe laws of this State, and by paying a license of $500, or they can pursue the occupation by paying a license of $1000 without incorporating under, tbe laws of this State.

Tbe statute presents two conditions, upon complying with either of - which citizens or foreigners can pursue tbe insurance business in this. State.

After carefully considering the printed argument filed by tbe defendant, we are unable to perceive any sufficient reason to depart from tbe decisions in tbe State v. Ogden and tbe State v. Lathrop, 10 A. 402, where, under tbe same state of facts as now presented, tbe statute in question was held to be constitutional.

It is therefore ordered that tbe judgment appealed from be affirmed with costs.


author: Taliaeerko, J.

text:
    No. 1639.
    St. Felix Casanave, Administrator, v. Adam L. Bingaman.
    A white man is allowed, by tlio laws of Louisiana, to acknowledge his natural children by a woman of color. Such acknowledgment must, however, bo made before a notary public in the presence of two witnesses. None but authentic evidence of the acknowledgment ia admissiblo to establish the fact, C. 0. 221, 222, 220 ; 12 R. 67.
    from the Second District Court of New Orleans. Thomas, J.
    <?. Schmidt, for plaintiff and appellant. IF. E. Hunt, for defendant and appellee.
   Taliaeerko, J.

Tbe plaintiff, as administrator of tbe succession of James Adam Williams, sues to get possession of tbe property of tbe estate which be alleges is illegally withheld from Mm by tbe defendant. The answer is that tbe defendant is tbe natural father of tbe decedent and bis sole heir, and as such lias been duly recognized and put in possession of tbe succession.

Tbe facts appear to be that James Adam Williams, or, as otherwise, named James Adam Bingaman, was one of three natural children who survived their mother, Mary Ellen Williams, a free woman of color who died in Admas county, Mississippi, in November 1861. She bequeathed a considerable amount of property to her heirs, then mi-, nors, viz: Charlotte Pauline (wife of tbe plaintiff in this case), James Adam and Elenora. In January, 1802, A. L. Bingaman, the defendant, was appointed their tutor. James Adam, the son, perished onboard the Fashion, in the destruction of that steamer, on the twenty-seventh of 'December, 1806. I-Ie left no will and no heirs in the descending line. His succession was appraised to $25,196 12.

The plaintiff, on the twelfth of July, 1867, applied for letters of administration, and after the usual proceedings were had, was duly ap-. pointed administrator of the estate.

On the ninth of July of the same year, three days before the filing of the plaintiff’s petition, the defendant filed his petition in the same court, setting out his claim to the succession of his natural son, as his sole heir, and prayed to be decreed entitled to the same; that he be allowed to accept it with benefit of inventory, and that an inventory and appraisement be made. It was shown satisfactorily to the court that the defendant had by notarial act, on the thirteenth of July, 1865, formally acknowledged the decedent as his natural son; that the son died without descendants, and that there were no debts against his estate. Therefore, on the twelfth of July, 1867, an order was rendered recognizing the defendant as sole heir of the estate, and that he be put in possession as such.

In this suit the plaintiff alleges as grounds ft>r annulling this order of the court, that the mother of the decedent died in 1861, and that the acknowledgment of paternity made by Adam L. Bingaman was evidently made in the exclusive interest of himself, and was therefore inadmissible without additional proofs legally taken to prove the filiation. That A. L. Bingaman was not the natural father of the decedent, and that he expects to prove that he repeatedly denied being his father. That the decedent was a free man of color, the son of Mary Ellen Williams, a free woman of color, and the said A. L. Bingaman, being a free white man, labors under a twofold disability in the matter of the acknowledgment of paternity, because the laws of Louisiana forbid a white man from legitimating his colored children, and because A. L. Bingaman was incompetent to marry Mary E. Williams, the mother, at the timo of the conception of the son, and hence could not acknowledge him as his natural child.” The defendant excepted on two grounds ; first, that the petition sets forth no cause of action; secondly, that the petitioner, Casanave, is without authority to stand in judgment herein as administrator of the succession of J. A. Williams, is identically the same person as J. A. Bingaman, and that the name of Binga-man was the patronymic by which that person was generally known, and to which he was entitled after the act of recognition in 1865. That the succession of J. A. Bingaman was not opened by the proceedings in virtue of whieli the plaintiff asserts the character of administrator of the estate of J. A. Williams, and could not bo opened, because the •arpe had been theretofore regularly opened and finally closed by the judgment of the court rendered on the application of the defendant to be put in possession of said succession in the proceedings referred to in plaintiff’s petition.

Judgment was rendered in favor of defendant, sustaining the exceptions and dismissing the plaintiff’s action. The judgment further ordered that the under tutor of the minor, Elenora Williams, institute, either conjointly with the plaintiff and wife or in her own behalf separately, in the name of said minor, an action testing the validity of the order of the court decreeing A. L. Bingaman to be the sole heir of J. A. Bingaman, otherwise called J. A. Williams.

From this judgment the plaintiff has appealed.

The grounds upon which the plaintiff chiefly relies are : First, that the defendant was not the father of J. A. Williams ; second, defendant could not legally acknowledge him.

That James Adam Williams, as he was sometimes called, is the same person that was also called James Adam Bingaman there can be no doubt whatever. The identity is fully shown. The plaintiff’s pleadings distinctly admit it. We do not see that lone declarations of defendant denying himself to be the father of the decedent, if such decla-rationshad been proved, could have weight against his formal acknowledgment of paternity before a notary public and witnesses in manner-required bylaw, and his sworn averments in judicial proceedings. That A. L. Bingaman was under any disability to make the acknowledgment of his natural child we do not see. “

The question whether a white man can by the laws of Louisiana legally acknowledge his children by a woman of color underwent a very full examination in the case of Compton and others, v. Prescott and another, executors, and others reported in 12 llobertson, page 57.

The court in that case said: “ Our code, after having in article two hundred divided illegitimate children into two classes, to wit, those born from two persons who, at the moment when such children were conceived, might have legally contracted marriage with each other; and those who are born from persons to whose marriage there existed some legal impediment, proceeds in the two subsequent articles to define who are meant by adulterous and incestuous bastards.- Civil Code, articles 201 and 202. The latter can never be acknowledged (ibidem, article 222), and although there is a legal impediment to the marriage of a white person with a free person of color (article 95), the exception does not appear to extend to their illegitimate or natural children, for article 222 says only, “ that such acknowledgment shall not be made in favor of the children produced by an incestuous or adulterous connex-ion.” Now, article 221 says in positive terms, that the acknowledgment of an illegitimate child shall be made by a declaration before a notary public in presence of two witnesses, and provides that no other acknowledgment shall be made in favor of children of color. This last proviso contains a negative, pregnant with an affirmative, and undoubtedly means, as we said in the case of Robinett et al. v. Verdini's vendees (14 La. 545), tliat any other proof of acknowledgment should be excluded when offered by children of color. It can not mean anything else, for article 226, by which illegitimate children who have not been legally acknowledged, are allowed to prove their paternal descent provided they be free and white ; provided, also, that free illegitimate children of color may also he allowed to prove their descent from a father of color only; and it is obvious that the last restriction was inserted into the law, because with regard to his white father an illegitimate child of color is not allowed to prove that he has been acknowledged, but in the manner pointed out in article 221, to wit, by authentic evidence; and that, therefore, he can not resort to any other kind of proof but when his father is a man of color.”

This is the settled jurisprudence of the State, and we are of the opinion that the defendant was not under any disability to acknowledge in the mode by public act before a notary and witnesses, the decedent as his natural son. We do not find that injustice has been done towards the two sisters of the deceased, J. A. Williams or J. A. Bingaman, for the judgment expressly reserves their right to institute proceedings to establish and recover any share or interest they may by law be entitled to in the succession of their brother.

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

Rehearing refused.