text:
    E. W. Huntington, Administrator, v. Widow Ellen Legros.
    This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produoe of the reciprocal industry and labor of both husband and wife, and of tbe estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase he only in the name of one of the two, and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.
    At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess, are presumed common effects or gains, unless they satisfactorily prove which of such effects they brought in marriage, or have been given them separately, or they have respectively inherited. The declaration is an authentic act, that property was acquired by a partner in community with separate funds, does not relieve that person from the burden of proving that fact aliunde.

    APPEAL from the Sixth District Court of New Orleans,

      Buplantier, J. Geo. L. Bright, for plaintiff. Gustavus Sehmidi, for defendant and appellant.
   Howell, J.

Plaintiff alleges that the succession of J. M. Laborde, deceased, administered by him, is the own'er of a certain lot of ground, with ad the improvements thereon, purchased by said deceased by act before J. W. Breedlove, notary, on 19th October, 1859, and paid for by him ; that his widow, the defendant, has illegally taken and kept possession thereof since his death ; that she asserts ownership of the same, and has received and retained the revenues thereof ; and he prays that the same be declared to be the property of said succession, and for judgment for the rent.

The defendant excepts to the plaintiff’s right to proceed in this suit; denies his authority to represent the succession of her late husband, and pleads the general denial.

Jnd meat was rendered overruling the exception, decreeing the propeity to belong to the succession of J. M. Laborde, and dismissing the claim for rent ; from which defendant appealed.

She contends that there is error in dismissing her exception, inasmuch as xilaintiff did not allege, and could not therefore prove the insolvency of the succession and the necessity of bringing into the succession the property held in her name, and her title to which could only be questioned by creditors and heirs.

It is true the petition does not contain such allegations; but as the exception was tried with the merits, and the mortuary proceedings were introduced without any restriction or qualification, they must be considered as offered to prove plaintiff’s right of action as well as his capacity.

By an examination of them, we find that the liabilities of the succession largely exceed its assets, and Whence the right of the administrator, as representing the creditors, to maintain his action for the property in question. The fact that he charged and was allowed commissions on a sum much larger than the amount of the inventory, does not prove the succession to he worth that sum.

On the merits, we think the lower Court did not err in decreeing the property to belong to the succession. The act of sale shows that it was acquired during marriage, and although taken in her name alone, the law declares it to belong to the community, unless the contrary is satisfactorily proven. C. C. Arts. 2371, 2374 The declaration in the act that it was acquired with her separate funds does not relieve her from the burden of proving that fact aliunde.' She offered no proof whatever.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Ilslev, J.

license: Public Domain

text:
    Widow de St. Romes v. Sourdes & Chassaignao.
    Where a seco nd agreement has been entered into, which is conditional, and the party fails to comply with the obligations assumed therein by him, the original contract takes effect as the only one between the parties.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. 6?. Schmidt, for plaintiff.

      L. Castera, for defendants and appellants.-

    — Our Civil Code, Art. 20d0i ^ reads: The dissolving condition is that which, when accomplished,, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.
    It does not suspend the execution of the obligation; it only obliges th® creditor to restore what he has received in case the Court provided for* in the condition takes place.
    That article is copied literally from Art. 1183 of the Nap. Codo.
    Toullier, vol. 6, p. 559, g 563, says: “ Aprfes avoir vu que l’accomplissement de la condition résolutoire, expressément stipulée, opere de pleifr droit la résolution de l’obligation, il faut voir quels sont les effets de. cette résolution.
    L’Art. 1183 nous l’enseigne d’une maniere claire et énergique en disanfr qu’elle remet les choses au méme état que si l’obligation n’avait pas existé, et qu’elle oblige le eréaneier á restituer ce qu’il a re^u.”
    Has plaintiff done what the law not only contemplates, but commands? No, she has kept the notes subscribed by us under the terms of the agreement of the 18th April, 1863, deeming it probably more profitable to invoke the resolutory clause of one contract, and yet to claim at the same time under that other contract whose existence is denied by her. But the law requires of any party who accuses the want of fulfilment, by another, of the obligations of a contract, to show that he has complied with his part of the contract. Chase v. Turner, 10 L. 23; Boyd v. Craig, 1 N. S. 625.
    Plaintiff did by her own act forfeit all rights to claim the resolution of the contract.
    Toullier, vol. 6, p. 605, par. 568, says: “S’il porte seulement que lecontrat sera résolu de plein droit, ou par la seule échéanee du terme, l’aequéreur peut empéeher la résolution en payant de suite, au moment méme oú il en est sommé.”
   Ilslev, J.

The facts of this case are correctly stated in the brief of the appellee. They are to the following effect.

On the 1st October, 1859, the defendants leased of the plaintiff a house, on Chartres street, for the period of one year, for the sum. of twelve hundred dollars, the rent payable monthly, say, one hundred dollars per month; and the lease stipulates that if neither party give written notice one month prior to the expiration of the lease, it was to be in full foree as if renewed yearly.

On the 18th April, 1863, the defendants being then indebted to the plaintiff in the sum of one thousand dollars, for ten months’ rent, and they having then paid her one hundred dollars in reduction of their indebtedness, she agreed to accept their two notes for four hundred and forty-five dollars each, at three and five months, from the 1st of April, 1863, in full of all claims up to the 28th February, 1863, and she executed •likewise a note for one hundred and ten dollars, at five months, to be void if the two last named notes for four hundred and fifty dollars each were paid; and it was further stipulated that the rent for the month of March should be paid at the signing of the said agreement, and that of the following months before the 8th day of each month.

On these conditions the plaintiff reduced the rent from one hundred to seventy dollars per month, stipulating, however, expressly, that the failure to comply with any part of the above agreement would render the whole null, and restore the original lease as if the above agreement had •not been executed; and the plaintiff having in vain applied for the payment of the rent for the months of April and May, 1863, fell back on her original contract of lease, and brought the present suit.

The answer of the defendant sets up the aforesaid agreement, admits the non-payment of the rent during the months of April and May, and says that they were unable to do so; and he further says that the plaintiff has not offered to return him his notes.

Judgment was rendered by the lower Court in favor of the plaintiff, in conformity with the original lease, and after an ineffectual application for a new trial, the defendants have appealed.

This is not a direct action to rescind the second agreement entered into between the parties to this suit. The second agreement was a conditional one, and the defendants having failed to comply with the obligations assumed therein by them, the original contract of lease again took effect as the sole contract between the parties.

We do not think that a tender of the notes marked D, E, H, to the defendants, previous to the inception of their action, was necessary, and as they are filed in Court, subject to their control, that is all that can be required.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, at the costs of the appellant.

Howell, J., recused.


author: Jokes, J.

text:
    J. T. Beale v. R. Trudeau et al.
    "Where parties are sued, jointly no judgment can be rendered against one without the other, although there was issue and trial as to one only. The proceeding is irregular.
    APPEAL frdm the Sixth District Court of New Orleans,

      Howell, J. Field é ShacJdeford, for plaintiff.

      P. H. Morgan, for defendant,

    — Admitting, for argument, the agreement and the proof of services, the obligation is a joint one ; the demand is against both defendants, and each is only liable for his or her virile share. Arts. 2080, 7082, C. C., require that all the obligors in a joint contract shall be sued together. It is alleged in the petition that both are defendants. But the prayer of the petition claims payment from Bene Trudeau alone, and the judgment is against her alone, although both were cited. In this there is error., 3 B. 140.
    In an action on joint contract all the obligors must be made defendants. No judgment can be obtained against either unless it be proved that all joined in the obligation, or are by law presumed to have done so, and the judgment must be against each defendant, separately, for his proportion. 3 B. 26; C. C. 2080 ; 5 B. 224 ; O. B. 351; 7 B. 181; 10 B. 430.
   Jokes, J.

The petitioner in this case sues the defendants jointly. ' There was issue and trial, and as to one, judgment was rendered for the amount of plaintiffs claim, whilst as to the other the case is still pending; undecided judgment in the lower Court having been rendered against the one who plead, he has appealed. In this Court he urges that the judgment was erroneous, it being for the entire amount of plaintiff’s demand, when in law, if liable at all, according to plaintiff’s own averments, he is only liable on a joint debt for one-half of the judgment rendered herein.

Of this opinion is this Court; but justice requires that this case be remanded, with leave to both parties to amend their pleadings, and for further proceedings according to law ; plaintiff and appellee paying costs of this appeal.

Howeuxi, J., recused.


author: Hyman, C. J.

text:
    John A. Letten v. Wm. Durbridge et al.
    When a party is sued upon his promissory note, and pleads the want of consideration, he must swear to the truth of his allegations in order to obtain a trial by jury.
    Where interrogatories were propounded to plaintiff, and parol testimony was adduced to show the capacity of the officer talcing them, without objection, they cannot be objected to.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Emerson & Huntington, for plaintiff. McPheeters, for defendant.
   Hyman, C. J.

The defendant, William Durbridge, being sued on his ¿promissory note, plead want of consideration, and prayed for a trial by jury.

The Judge of the District Court refused the prayer, tried the case without the intervention of a jury, and gave judgment against defendant.

Defendant appealed.

He filed two bills of exception to the ruling of the lower Court.

The first is to the refusal of the Judge to permit the case to be tried by a jury. The affidavit made «by defendant, to wit: that he expected &>■ prove want of consideration of the note sued on, is insufficient.

To entitle him to the right of trial by jury, he should have sworn tO' the truth of the allegations in his plea of want of consideration. See Stat. 20th March, 1839, p. 172, g 21.

The second is to the refusal of the Judge to take, as confessed, certain interrogatories on facts and articles propounded by him, defendant, to his opponent.

The interrogatories were answered, but defendant contends that the official capacity of the person who took the answers to the interrogatories,, or his authority to take them, is not shown; that the manner in which they were taken is informal, and that, therefore, he has the right to have the interrogatories as confessed.

The capacity of the officer who took the answers, and his authority to do so, was proved by parol, without any objection on the part of defendant to the admissibility of such evidence.

The Justice of the Peace who took the answers stated in his proefesverbal that the answers of the party, on his oath, to the interrogatories, Were written by him, the Justice, in his presence, were read to and approved by said party, and that he, the Justice, caused the party to sign the answers. The Justice then signed the procbs-verbal in his official capacity. The forms of law were complied with.

Judgment affirmed, with costs.

Howell, J., recused.


author: Hyman, O. J.

text:
    A. Ledoux v. Samuel Jamieson.
    When a person appointed a Notary Public for tho Parish of Orleans, ceases to be such, the Iavr, (seo Statute 1857, p. 85, § 3,) makes it the duty of the Governor to designate, by order, under the seal of tho State, the Notary to whose custody, the records of the former Notary shall be consigned, and Courts are bound to presume when a Notary of the Parish of Orleans certifies that he has in hie custody the record of a former Notary of tho Parish, that the Governor has properly discharged his official duty, and has designated him, tho Notary, as the custodian thereof.
    Where several notes, payable at successive periods, and secured by the same mortgage, have all matured, the holder of the last may obtain an order of seizure without proving that the others have been paid.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. P. H. Morgan, for plaintiff. — 1. There is no force in the first objection made by the appellant.
    The eopyis as authentic a one as it was possible for plaintiff to procure.
    It is certified to by the notary to whom the records of the notary before whom the act was passed had been confided.

      In the case cited by the counsel from the 4 N. S., p. 153, it was decided that “executory process cannot be issñed on a mortgage containing mutual covenants, which was never accepted by the mortgagee, there being no evidence that the latter ever bound himself to the implied covenants contained in the act.”
    In the case referred to in 6 Ann. p. 477, it was decided that “ where a note secured by mortgage is endorsed by the payee to a third person, the endorsee cannot issue executory process on the mortgage, without authentic evidence of the' endorsement. ”
    But in the case at bar there is no question of any mutual covenants between the parties, or of the non-acceptance by the mortgagee.
    On the contrary, they were both present at the confection of the act, and it was accepted by both.
    Neither is there, or can there be, any question as to the ownership of the note or the genuineness of the endorsee’s signature. The notes were made by Samuel Jamieson, payable to his own order and by him endorsed, and they were given to the plaintiff himself, and are mentioned in the act of mortgage upon which tho executory process issued. They were given to him by the defendant, and he now asks the defendant to pay them. The notes in the possession of the plaintiff, and the mortgage given to secure their payment, is the evidence of his title. It is moreover submitted, that the holder of a note, payable to the order of the maker, and by him endorsed in blank, is not obliged to prove title. Possession is title.
    2. If the existence of the note for f1,850 has been ignored by the plaintiff, it may be that it was ignored because it had no existence when the suit was instituted.
    It is not seen how the case quoted from 16 La. p. 169, benefits the appellants. The question there was whether the holder of one or more of a series of notes, some of which were not due, could cause the property mortgaged to be sold without reciting all of the notes, and asking that the sale be made to satisfy the notes ; the notes that were not due as well as those whose term of payment had arrived. Of course the Court, under Art. 686' O. P. decided, “ as a rule of practice,” that when a seizing creditor only sues for such instalments of a debt secured by privilege or special mortgage as are due, the property so mortgaged is to be sold for the whole of the debt, on such terms of credit as are granted by the original contract, although such creditor does not show that the subsequent instalments belong to him, or that he is the holder of aE the notes mentioned in the contract of mortgage.”
    But there is no question here of any note to become due subsequent to the maturity of the ones sued upon. On the contrary, the act of mortgage and the notes show that they were aE given to the plaintiff, and that the note, whose “existence is ignored,” was long past due when executory process issued, and it has been expressly decided, that “when several notes, payable at successful periods and secured by the same mortgage have all matured, th® holder of the last may obtain an order of seizure without proving the others have been paid. ” Armón v. Downes, 2 A. 242.
    This is a simple action upon a promissory note secured by mortgage, upon which, after all the forms required by law had been complied with, executory process issued. The apjieal was only intended for delay, and damages for a frivolous appeal should be awarded against him.

      Durant & Horner, for defendant.

    — Defendant appeals from an order of seizure and sale, and relies on the following points and authorities.
    1. The authentic act on which the suit is brought is before Grima, N. P., and is not certified in conformity to law. There is no authentic copy on the record. C. P. 142, 174 ; 4 A. 153 ; 6 A. 477.
    2. The writ has not Fbeen ordered to issue in conformity to the terms of the mortgage. .There has been no provision made for the outstanding note for $1,850, at one year’s date, and its very existence has been ignored in plaintiff’s petition. Pepper v. Dunlap, 1G La. 169 ot seq.
    Wherefore defendant and appellant prays that judgment be rendered in his favor, with costs and general relief.
   Hyman, O. J.

Defendant has appealed from an order of seizure and sale, granted by the Judge of the Sixth District Court of New Orleans.

Defendant, in order to obtain the reversal of the fiat of the Judge, contends that the copy of the act of mortgage, which forms a part of the evidence on which the order was granted, was not certified in conformity to law.

No objection can bo raised to the form of the certificate, as it is sufficiently formal, and the question, whether the copy is in conformity to law depends on the solving of two questions. 1. Whether the notary who certified the copy was the legal custodian of the original record ? 2. Whether, as custodian of the original record, he could legally certify to a copy thereof ?

The original act, which is in authentic form, was passed before Felix Grima, a Notary Public of the Parish of Orleans. On his ceasing to be a notary the act passed in to the custody of Theodore Guyol, a notary of said parish ; and on his ceasing to be a notary it passed into the custody of Felix McCulloch, also a notary of said parish, who certified that the copy in evidence, was a true copy of the original act in his custody, as successor of Theodore Guyol, late Notary Public.

When a person appointed a Notary Public for the Parish of Orleans, ceases to be such, the law, (see statute 1857, p. 85, § 3,) makes it the duty of the Governor to designate by order, under the seal of the State, the notary to whose custody the records of the former notary shall be consigned, and Courts are bound to presume when a Notary of the Parish of Orleans certifies that he has in his custody the record of a former notary of the parish, that the Governor has properly discharged his official duty, and has designated him, the notary, as the custodian thereof.

The notary who certified to the copy of the original act, being the legal custodian thereof, was the proper officer so to certify, and his certificate makes proof of which is contained in the original. See Civil Code Art. 2247.

Defendant further contends that the order of seizure and sale was improperly granted, because the mortgage was given to secure the judgment of another note, besides the notes to enforce the payment of which the order was granted, and that the order should have provided for the payment of the outstanding note. The outstanding note was due before the order of seizure and sale was granted.

This question of practice has been settled in the case of Armon, Executrix, v. Downes, 2 Ann. 243.

The decree of the District Judge is affirmed, with costs.

Howeed, J., recused.


author: Labatjve, J.

text:
    Widow A. Morphy v. P. C. Blanchin.
    The warranty respecting the seller has two objects: the first is the buyer’s peaceable possession. of the thing sold, and the second is the hidden defects of the thing sold, or its redhibitory vices.
    Redhibition is called the avoidance of a sale on account of some vice or defect of the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must bo supposed that the buyer would not have purchased it, had he known of the vice.
    If the thing affected with the vices has perished, through the badness of its quality, the seller must sustain the loss.
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. M. Blache, for plaintiff. L. Gastera, for defendant.
   Labatjve, J.

This is a redhibitory action to annul the sale of a female slave, bought by plaintiff from defendant, on the 28th March, 1861, for the sum of 55800 cash.

It is alleged that, at the time of the sale, the slave was laboring under an incurable disease, to wit: phthisis, or pulmonary consumption, which existed in the slave long before. The slave was to have been delivered to the plaintiff on the 15th of May, 1861. The answer is substantially a denial of plaintiff’s demand, and concludes by demanding, in reconvention, 55300, for keeping, medical attendance, medicines and care, on account of the slave while she was sick. The Districts Court gave judgment fqrjilaintiff, and the defendant appealed.

It appears that the slave was never in the possession of plaintiff, and that, at the time when she was to have been delivered, the 15th May, 1861, she was already sick, and plaintiff refused to receive her.

Dr. Eagot, the only physician who examined the slave, about 22d May, 1861, while she was in the possession of defendant, says that he subjected her to auscultation, which, he says, is the mode by which physicians generally ascertain the diseases of the lungs, besides thp external symptoms which characterize those diseases. He says that the disease had so far progressed that the diagnosis was certain; that he ascertained the existence of tubercles in the lungs, and ulceration, called in French, cavernes. On his own examination, he says that he discovered the tubercles in the lungs by auscultation, which is the more certain mode when the disease has made some progress. Dr. Lambert says that in such a case the diagnosis is more certain.

Dr. Fagot also says: I consider the slave was laboring under that disease for some time; and, when I examined her, the disease had already advanced. The disease existed in the slave probably several months before I examined her, but I cannot say how long. I think the disease caused her death. It is a disease which is generally considered by physicians as incurable.

Dr. Lambert says: There are instances of persons dying of consumption in three, four and five weeks, sometime, but not the general rule. I have had only three or four cases of acute or rapid consumption during my practice in this city, for twenty-five years. The slave died in November, 1861.

It appears from the answer that the defendant was anxious to deliver the slave on the 15th May, 1861. The said slave was then sick.

"We agree with our learned brother, the Judge below, that the disease existed at the time of'the sale; and, for the reasons given by the Judge a quo, the judgment must be affirmed. 19 L. 418; C. C. Arts. 2151, 2196 and 2510.

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


author: Howell, J.

text:
    J. B. Emerson v. J. G. Lee.
    A contract produced by violence or threats is void, although the party in whose favor the contract is made, did not- exercise the violence or make the threats, and although he were ignorant of them.
    Where a payment was received under duress, the plaintiff must prove that he offered to return the identical notes in which the payment was made.
    A FPEAL from the Sixth District Court of New Orleans,

      Leawmont, J. Durant & Homar, for plaintiff. O. Roselius, for defendant.
   Howell, J.

This suit is brought to recover the amount of a note made by defendant, on the 27th January, 1860, for $1,833 33%, payable at two years from its date, at the bank of the Louisiana State Bank, with six per cent, current and eight per cent, eventual interest, and secured by mortgage on property described in the petition belonging to defendant, and to have said mortgage recognized and enforced for the payment of said note, for which plaintiff alleges he was forced, by imprisonment, to receive Confederate notes to the amount of $2,053 33, which he has never considered nor treated as a payment of the debt, but has always kept the said Confederate notes without using them, and now tenders them back to defendant. There is a demand also for damages.

The defence is a general denial and the prescription of one year.

There was judgment in favor of plaintiff for the amount of the note and interest, with the rights of mortgage, without prejudice to bona fide motgages, inscribed subsequent to the illegal erasure, and for the defendant on the claim for damages, from which judgment defendant appealed.

The plea of prescription applies to the demand for damages, but not to the main action, which is to recover the amount of a note alleged to be yet unpaid.

It appears that defendant, about the time his note became due, in January, 1862, and after, called several times on plaintiff and offered ’to pay it in Confederate notes, which the latter persistently refused to accept; that the defendant informed him that he would have to receive "them, and threatened to have him reported in a newspaper; that the Confederate Provost Marshal, hearing of plaintiff’s refusal, in another case, had him arrested, on the 24th March, 1862, and confined, while sick, in the Tarish jail, until he consented to receive Confederate notes in payment of debts due him; and that, soon after his release from jail, the defendant called on him and paid the note, at the office of a broker, in Confederate .notes. There is no doubt that it was the intention of the Provost Marshal to force the plaintiff to receive Confederate notes as money, without depreciation, in all his transactions, and, by means of imprisonment, while in bad health, his consent to do so was extorted; for said officer says, “that he and other Provost Marshals were expressly charged, by their superior in command, to watch closely for all persons who might •attempt to depreciate their currency.” And it is immaterial whether or not defendant knew of the duress or violence. C. C. Art. 1846.

Plaintiff’s consent to accept Confederate notes was forced, produced by violence; and, had he shown what he alleged, that he never used the notes given to him by defendant, we would not hesitate to give him relief. We think that, in order to recover, it was essential for him not only to allege but to prove that he retained and tendered the identical notes received by him; but he has failed to make the necessary proof, which, it appears, he might have done, as the payment was made to or in the presence of his broker.

To permit him to offer other than the very notes given to him, would indirectly, at least, recognize in them the quality of currency as it would have reference to, and require the sum only in question, instead of the unauthorized evidence of that sum; as in the case of the issue of a chartered bank, where any notes amounting to a particular sum are equal to any other notes of that issue amounting to the same sum. This is a recognition which this Court is not prepared to make.

And, besides, there is proof in the record that Confederate notes, at 'the time, had some value (however this value may have been imparted), and it would afford plaintiff the opportunity to barter or make merchandize of those received by him> and afterwards substitute or replace them at small cost, and thus actually realize the amount claimed in addition to a recovery from defendant.

We think plaintiff has failed to make out his case.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and that there be judgment of nonsuit in favor of defendant, with costs in both Courts.


text:
    J. B. Emerson v. M. Gernon.
   Howell, J.

This case, tried with that of Emerson v. Lee, just decided, presents the same material facts and questions of law, and for the reasons therein assigned.

It is ordered that the judgment of the lower Court be avoided and reversed; and that there be judgment of nonsuit in favor of defendant, with costs in both Courts.


text:
    A. Bazoni v. J. B. Marcera.
    — On a Motion to Dismiss.
    Where a claim is under three hundred dollars, it is not appealable, although it be consolidated with another suit in which another party is plaintiff.
    j^PPEAL from the Third District Court of New Orleans,
   Ilslev, J.

The appellee moves to have the appeal in this case dismissed, because the amount in dispute is less than three hundred dollars, being only two hundred and thirty-five dollars and thirty-five cents, with legal interest, from the Jth August, 1863.

The case is not an appealable one; and the fact that it was consolidated with another suit, in which another party figures as plaintiff, cannot confer jurisdiction on this Court:

It is therefore ordered, adjudged and decreed, that the appeal in this case be dismissed, at the costs of the appellant.


author: Ilsi.es, J.

text:
    Augustus Devall v. The Succession of Geo. W. Watterston.
    A suit of a Succession being a Probate proceeding, cannot be submitted to a jury.
    A party will not be permitted to deny what he has solemnly acknowledged in a judicial proceeding.
    A party cannot shift his position at will to a contradictory one, in relation to the subject-mattor ©f litigation, in order to frustrate and defeat the action of the law upon it.
    APPEAL from the Sixth Judicial District of the Parish of Livingston,

      Marlin, J. Duncan N. Hennen, for defendant.

      Alfred Hennen, for plaintiff.

    — The plaintiff alleges that a partnership existed between the late G. W. Watterston and himself, and prays for a liquidation thereof, and the payment of the balance, §4,300, or such other sum as may be found due, with general relief.
    The defendant made a general denial, and prayed for a trial by jury, which was denied him, whereon he took a bill of exceptions. Art. 1036 of the O. P. settles this : “All causes tried before a Court of Probate shall be decided without the intervention of a jury, even if the parties wish one.”
    The suit was against a succession, and consequently before a Court of Probate. C. P. Arts. 924, g 13, 983. Next, the defendant filed three peremptory exceptions. The first is “that the"agreement set forth in the petition does not establish the contract of partnership, but the contract of hire.”
    The most technical special pleading used in Westminster Hall, since the days of Lord Coke, does not require a set form of words to denote a partnership. It is termed a contract of partnership in the petition, and that is sufficient under the pleadings required by the C. P. Arts. 171, 172, 33.
    • As to the second and third exceptions, it is sufficient to answer that the plaintiff makes no claim for a salary on account of services rendered, and therefore the prescription of three years cannot apply, nor res judicata be invoked against it from a former suit between the parties.
    In following downwards these technical difficulties, the Court will find, at page 19, a second bill of exceptions, made, as it states, “before the evidence of plaintiff was introduced,” to the introduction of any evidence by the plaintiff to establish his allegations. This is rather a novel method of objecting to evidence, and amounts to this, if anything: the plaintiff shall not be admitted to prove Ms allegations ; but the defendant went further and introduced evidence to show that the plaintiff should be precluded from giving in any evidence to support his demand. The Court, however, overruled the objection and permitted the plaintiff to proceed. When the plaintiff offered his evidence the defendant changed his grounds of objection, and stated “that the canse of action in said suit, No. 540, was not the same as the present;” and this objection of the defendant was “sustained by the Court,” and the evidence of plaintiff was rejected. How the plaintiff agrees Lilly with the counsel of the defendant “that the cause of action in the saidsuit No. 540 is not the same as the present,” and as this is a judicial confession contained in the pleadings and proceedings, he insists upon holding the defendant to this admission, which he cannot here deny, revoke or contradict, and the contradictory ground assumed before must be considered as abandoned by the last averment,, containing the result of his sober reflection and final judicial interpretation.
    If these variations in the defendant’s defence bring ns to Ms own conclusion, and he is to be judged ex ore suo, there can be no difficulty in-rendering a judgment against Mm. He cannot plead hot and cold, fast and loose; but must be taken at Ms own last words, and by them the plaintiff is willing to be governed. The two suits are not inconsistent nor contradictory.
    Two different agreements are distinctly stated to have been made between the parties, and if not irreconcilable must stand. By the law of partnership, one partner may claim for services, even rendered to the partnership for the common profit, when those services were not expressly included in his duties as partner. Two contracts may co-exist and be valid. In construing the allegations of the two suits full effect must be given to each, and reconciled, as in two apparently conflicting decisions of a Court, or two clauses or parts in a statute. No contradiction is to be admitted unless unavoidable. The contradiction and inconsistency must foe clearly made out by the defendant, who wishes to make them a bar in this suit. It is not enough that he makes them probable. At best, the defendant takes only technical grounds of defence. The Court will not favor them to the prejudice of the merits of the case, and will not sacrifice the latter to sustain the others. See Story on Partnership, g 185,186, and the elementary authors and cases quoted by him, but especially the long extract from John Yoet, on the Pandects, lib. 17, tit. 2, $ 19 (first published in 1697), where the legal positions now made are fully sustained.
    This latter author goes so far as to state that, under some circumstances, a salary may be claimed, over and above a share of the profits, for a partner’s particular services, without an express agreement for it, on the same argument and authorities detailed in the preceding title (Mandati), and which are not quoted by Story. In this last contract (Mandati), which is essentially gratuitous, a salary is allowed for various services, in opposition to that very essence which distinguishes it from other contracts. On the merits of this case no doubt can exist. See testimony of S. McConnell ; Henburger’s answer to fifth interrogatory, as to the amount of lumber. All the witnesses concur in proof of the partnership. The suggestion, therefore, of the defendant as to their credibility is-unfounded, while they testify as to the declarations of a dead man.
    It may be usage that a salary or free gift belongs more really, perhaps, to one in partnership, certainly, than in mandato, provided the parts of the profit coming to each are a sufficient reward for his labor. Nevertheless, nothing prevents one partner who manages and promotes, perhaps chiefly and entirely, the business of the partnership, when he is notbound foy the contract to perform that work more than the others, from being from the beginning assigned some salary; or, afterwards, it may be decided by the arbitration of a good man, and this rather by an uncommon rule of the magistrate, the (reason or) argument applying of those things which are said concerning salary in mandato, rather than an action tried pro socio. And that this is agreeable to modern usage, is clear from the answers of the lawyers and merchants among the responsa juris eonsultorum Hollandise. Yoet ad Pand. lib. 17, tit. 2, § 19.
   Ilsi.es, J.

This is a suit instituted by the plaintiff against the succession of the late George W. Watterston, claiming the settlement of the partnership which, he alleges, formerly existed between him and the late George W. Watterston; and the plaintiff prays in his petition that the executor be ordered to render an account of the said partnership affairs; that the said partnership be settled, and that petitioner have judgment against the said executor for the sum of four thousand three hundred •dollars, or for such amount as the plaintiff may be found entitled to, on a full and fair settlement of said partnership, with interest and costs.

The plaintiff represents in his petition, that in the summer of 1856 he ■entered into an agreement with Geo. W. Watterston, by which agreement petitioner was to give his personal services in .the management of the steam saw-mill belonging to the said Watterston, on the river Amite, in the parish of Livingston, the said Watterston to furnish the necessary hands and supplies for the running of said mill, furnishing timber, etc.» in consideration of which the plaintiff was to receive one-half of the nett profits, after deducting the wages of the hands, costs of supplies for the hands, repairs to mill, and cost of timber, etc. He further represents, that in pursuance of said agreement, and in accordance therewith, he took charge of the mill in the beginning of September, 1856, and diligently and faithfully devoted his attention to the discharge of his duties, as agreed on, to the entire satisfaction of the said Watterston, until the latter part of the month of October, 1857. He then proceeds to show how much lumber was sawed, and that the said lumber brought some nine thousand dollars, which were received by Watterston.

He avers that there was no settlement of the partnership up to the time of Watterston’s death, and that there is due to him on settlement a large amount, four thousand dollars and upwards, he having received about two hundred dollars during the lifetime of the said Watterston.

The defence is a general denial, and the following peremptory exceptions of law:

1. The agreement set forth in the petition does not establish the contract of partnership, but the contract of hire, locatio.

2. If this action under the prayer for general relief be considered as a claim for hire or salary, then defendant pleads res judicata, the judgment in this (the District Court) in thé suit No. 540, between the same parties, for that cause of action; and finally,

3. Prescription: the last named action for wages is prescribed by three years.

These exceptions were overruled in the lower Court, which rendered a judgment on the merits, in favor of the plaintiff, and against the defendant, for the sum of fourteen hundred and twenty-one dollars and fifty cents, being amount due him, as partner of Watterston, in the Clio sawmill; and from this judgment the succession has appealed.

As the exceptions urged by the defendant would, if maintained, have the effect of disposing of the plaintiff’s action in a very summary manner. We will proceed to examine them. 1 and 2. The first and second exceptions may be conjoined and considered together.

Previous to the institution of the present action, the plaintiff had, in the suit No. 540, in the same Court, instituted an action against the succession of G. W. Watterston, claiming from it the sum of one thousand six hundred dollars, with interest at the rate of five per cent, per annum from the 8th day of January, 1858, subject to a credit of one hundred and fifty dollars paid on or about the 15th day of November, 1856; and in his petition the plaintiff avers that, according to an agreement entered into with the said George W. Watterston, he took charge of, and assumed the management and control of the' steam saw-mill belonging to the deceased Watterston; that he, the plaintiff, had the general superintendence thereof, and for which he was to receive, as a compensation, the sum of one hundred dollars per month from the 8th day of September, 1856, to the 8th day of January, 1858, making sixteen months, in which he was thus employed; that during that time he received the amount of the credit above expressed, leaving a balance now due him of one thousand four hundred and fifty dollars, as will fully appear by reference to the annexed account made part of his petition; and he finally avers that the duties and labor performed by him were worth one hundred dollars per month.

We are relieved from the necessity of examining the question whether the cause of action in the suit No. 540 is identical with that of the present one; because -the defendant has, in this suit, admitted judicially the fact that they are not the same, and, by that admission, excluded certain testimony offered by the plaintiff. Considering that this judicial admission referred to the canse of action, as alleged in the two petitions, still it is fatal to the exception rei adjudicate, and that exception was properly overruled.

The defendant, in his answer, prayed for a trial by jury; which prayer was properly rejected, as the suit was against a succession, and being a probate proceeding, could not be submitted to a jury. See 1036 C. P.; 924. & 13, ib.; 983 ib.

When the case was on trial on the merits the plaintiff offered evidence to prove the partnership between him and the deceased, and also the other allegations predicated on that alleged relation of the parties; and to the introduction of all such evidence the defendant objected, on the ground that the plaintiff had made a judicial admission in the petitjpn of suit No. 540, between the same parties, that he was employed by the deceased during the same period as stated in the petition of this suit, at the same saw-mill as the superintendent, at wages of one hundred dollars per month; and that the evidence offered went to contradict Ms judicial admission, by undertaking to show that the plaintiff was with Watterston, as partner, and not on wages as superintendent; and the defendant thereupon introduced the petition in said suit No. 540; and which objection, made by the defendant, being overruled by the Court, he tendered his bill of exceptions, which was signed by the Court. We think the Court below erred in permitting the introduction of any evidence whatever to contradict the solemn admission made by the plaintiff in his petition in the first suit, that the contract between him and Watterston, evidently the only one, was one of hire.

It was held in Gnoley v. Conner, 9 A. 416, that a party will not be permitted to deny what he has solemnly acknowledged as a judicial proceeding; and in Denton v. Erwin, 5 A. 18, the Court said in addition to this: that a party cannot shift his position at will to a contradictory one in relation to the subject matter of litigation, in order to frustrate and defeat the action of the law upon it.

The alleged cause of action in the two suits is not an identical one; but the judicial admission made by the plaintiff in the first suit, that the contract sued on was one of hire, estops the plaintiff from proving that that contract was one of an entirely different nature. It is the presumptio juris et de jure, against which the law admits no proof whatever; and as it is the admission in the petition in suit No. 540, which precludes the admission of any contradictory proof, it is needless to determine whether the Court erred in excluding the parol testimony in said suit, offered by the plaintiff; and to that end to examine his bill of exceptions.

■The judgment of the lower Court must be reversed; and as nothing could be gained by a judgment of nonsuit, our judgment must be for the defendant.

It is ordered, adjudged and decreed, that the judgment of the lower Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that judgment be and it is hereby rendered against plaintiff and in favor of the defendant; and it is further Ordered, that the plaintiff and appellee pay the costs in both Courts.


author: Hvman, C. J.

text:
    The State of Louisiana v. Frederico Abellanado.
    No law of tbe State requires that a bill of indictment for murder sliould be found within a year after tlae commission of such a crime.
    APPEAL from the Eirst District Court of New Orleans,

      Abell, J. B. L. Lyneh, Attorney General, for the State. H. C. Castellanos, for defendant.
   Hvman, C. J.

Defendant was indicted for murder, and convicted of the offence charged.

After the verdict, he moved for an arrest of judgment, on the ground that the bill of indictment was defective, both in form and law, and that the same was not found within one year after the commission of the crime charged.

The District Judge overruled this motion, and rendered judgment against defendant. He has appealed.

We do not discover any defect in the bill of indictment, or on the face of the record, and therefore it is unnecessary for us to enquire whether the first cause assigned in the motion to arrest judgment could be made after the jury was sworn. See 18 {1 of an act entitled “An act to regulate the mode of procedure in criminal prosecutions. ” Approved, March 14, 1855.

No law of the State requires that a bill of indictment for murder should be found within a year after the commission of such a crime.

Judgment affirmed, with costs.


author: Howeuxi, J.

text:
    Succession of Thomas O’Laughlin.
    The vendor of an immovable or slave must cause the act of sale to be duly recorded, in order to preserve his privilege; if not so recorded within six days from its date, if passed in the place where the-registry of mortgages is kept, adding one day for every two leagues from the place where it was-passed to that where the Register’s office is kept, it has> no effect as a privilege; i. e. it confers no preference over creditors who have acquired a mortgage in the meantime, which they have recorded before it; but it will still avail as a mortgage, and be good against third persons from the time of it# being recorded.
    Wit h the exception of special privileges, which exist on immovables in favor of the vendor, of workmen and furnishers of materials, as declared above, the debts privileged on the movables and immovables generally, ought to be paid, if the movables are insufficient, out of the product of the immovables and slaves belonging to the debtor, in preference to' all other privileged and mortgaged-creditors.
    The loss which may then result from their payment must be borne by the creditor whose mortgage is least ancient, and so in succession, ascending according to the order of the mortgages, or by pro rata contributions, where two or more of the mortgages have the same date.
    When the debts privileged on the movables and immovables cannot be paid entirely, either because-the movable effects are of small value, or subject to special privileges which claim a preference, or because the movables and immovables together do not suffice, the deficiency must not be borne proportionally among the debtors, but the debts must be paid according to the order established above, and the loss must fall on those which are of inferior dignity.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. Buchanan <& Gilmore, for MeCloskey, appellant. Budd é Lambert, for curator. H. Hunt and H. A. Morse, for Mrs. Bannister. J. Culbertson, for absent heirs.
   Howeuxi, J.

The curator of this succession filed a tableau distributing the proceeds of the sale of two parcels of real estate, as the only property of the succession; and, not being sufficient to pay the special mortgages and the law charges, taxes, etc., he appointed the payment of the latter, proportionally between the mortgage creditors.

Hugh MeCloskey, one of these creditors, appealed from a judgment dismissing his opposition to, and homologating said account. His grounds of opposition are :

1. That the immovable property, subject to his special mortgage and vendor’s privilege, is only liable to pay the charges necessary to effect the sale thereof.

2. That the curator has not used due diligence to collect the debts due-the estate, some of which are placed on the inventory as good, and should, have been made available for the payment of the law charges.

3. That the lot on Roman street, being the other parcel of the real property sold, was not assessed for its first proportion of said expenses.

4. That he is entitled to certain credits for taxes and certificate of death paid by him.

5. He opposes the correctness of every item of charge or expenses upon the account, in the event that he should be held liable to pay the same.

The first and third grounds may be considered together.

The appellant bases his exemption from paying the law charges upon his vendor’s privilege, and questions such privilege claimed by Mrs. Bannister, who also filed an opposition claiming the vendor’s privilege, as holder of a note given for the lot on Roman street, and denies his privilege, in which, before this Court, she is joined by the curator, who contends that, being merely mortgage creditors, the expenses must be borne by the immovables pro rata, according to the price which they-produced respectively.

Both acts of sale, by virtue of which the vendor’s privilege is claimed* were recorded in the office of the Recorder of mortgages, after the expiration of the delay fixed' by Art. 3240 C. C.; and, according to Arts. 3238, 3241, and the ruling in the case of Porche v. LeBlanc, 12 A. 778, the privilege is lost, and the creditors are entitled only to their rights of mortgage. The question is then presented, shall they contribute proportionally to the expenses, or shall the one holding the mortgage of the later date, though upon separate property, bear the whole loss, up to the amount produced by said property ? .

In the case of Devron v. His Creditors, 11 A. 482, this question was raised, and the decision of a majority of- the Court was, that the property subject to the junior mortgage must first contribute to the payment of the privileges; and, if its proceeds do not suffice, then the next older in date, and so in succession, ascending according to the order of the mortgages.

The Court says : “Since the adoption of the Code of 1825, we do not think the point now before us has been expressly decided. The cases of Jarvin v. His Creditors, 10 L. 554; Monbouchet v. Ferrand, 12 L. 372; and Cazeau v. His Creditors, 6 R. 268, without discussing the case, seem to affirm, by implication, the decisions in the 5 Martin, 469, and 6 M. 520, decided under the old Code.

In the ease of Dreux v. His Creditors, 7 N. S. 637, 640, the Court notices the change in the legislation, introduced by Article 3236, but the case itself, having arisen before the Code of 1825, was decided under the provisions of the old Code.

We consider the provisions of the Code clear and unambiguous, and that hitherto there has not been any interpretation placed upon the Articles cited (3236, 3237,) which could weigh as an authority against what appears to us to be their obvious meaning. ”

In a dissenting opinion, it was said: “The reference to different mortgages, according- to their date, must be taken to refer to different mortgages on the same thing. Conventional mortgages, in due form, upon different things, are of equal dignity, irrespective of their dates.”

But it will be observed that Article 3236, which provides how debts, privileged on the movables and immovables generally, shall be paid, does not refer to the dignity, of mortgages as existing upon different things, but only to the dates or ages of the mortgages upon the debtor’s property in general; and it directs that such debts shall, in a certain contingency, ,be paid out of tine product of all the immovables and slaves belonging to the debtor, in preference to other privileged and mortgage creditors, except the vendor, the workmen, and the furnishers of materials, with privilege. And, in case any loss shall result from the payment out of this product of the immovables, it shall be borne first by the creditor whose mortgage is the least ancient, and then in the ascending order of time, but by pro rata contributions, where two or more of the mortgages (whether upon the same or different things) have the same date.

While Article 3237, in which the expression, “of infei'ior dignity” occurs, provides how these privileged debts shall bear the loss, when there is not property enough of any kind to pay all of them; and directs that these debts must be paid according to the order established in the preceding Articles in the same chapter, fixing the order in which privilege. creditors are to be paid, and that the loss must fall on those debts (les creances) which are of inferior dignity.

Observing this distinction in the two articles, it is not difficult to understand the meaning of Art. 3236, and to adopt the interpretation given to it, in the opinion of the majority of the Court just quoted, which we think is now the settled doctrine on this question.

We conclude, then, that, as the mortgage under which Mrs. Bannister claims, is subsequent to that held by McOloskey, the property subject to it to the extent of its proceeds, must first contribute to the payment of the general privileges, before the property subject to appellant’s mortgage can be required to contribute. The appellant admits his liability for the charges necessary to procure the sale of the property, subject to his mortgage.

II. As to the second ground, we can find no evidence of any diligence on the part of the curator to collect the debts, shown by the inventory to be due to the estate. We observe, in the record, an agreement that the account books of the deceased shall have come up in the original; but they are not before us, and if they were, we do not think ourselves called upon to search through them to find, nor do we- suppose we could find in them proof that the debtors would plead prescription, or that interruption could not be shown. It was certainly the duty of the curator to make some effort to collect the debts. His personal liability, with his surety, will depend upon the showing, which he may make on this point.

IV. The fourth ground of opposition is not urged in this Court, and we presume the appellant has waived it,, as he retained the funds.

V. The fifth ground is an opposition to the correctness of all the charges and expenses in the account, which appear to us to be larger in proportion to the value of the estate and the mortuary proceedings ; but, as there is no evidence by which we can judge of their correctness, and the creditors who are called upon to pay them, have a right to the strictest legal proof of their correctness, we think justice requires that the case be remanded, to enable the parties, respectively, to contest and establish the ■charges opposed.

Courts should be careful to protect successions from waste, and require law officers to conform their charges to the legal standard.

It is therefore ordered that the judgment of the lower Court be avoided and reversed, and that this case be remanded tobe proceededin according to law, and the views thereof expressed in this opinion. The costs of appeal to be paid by the succession.


text:
    X. Lambert v. C. M. Conrad.
    — On a Motion to Dismiss.
    .A non-resident has two years in which, to appeal from a deoree rendered against him in the Courts.
    APPEAL from the Sixth District Court of New Orleans.
   Hyman, C. J.

Plaintiff, on the 7th January, 1864, obtained an order for the seizure and sale of certain real property of defendant, while he was absent from this State, and was residing in Virginia.

In the latter part of the year 1865 defendant returned to the State, and on the 25th day ®f November, 1865, he filed a petition to appeal from the fiat of the Judge. The Judge granted the order of appeal, on 25th November, 1865, and on the 5th of December, 1865, defendant took the appeal by filing his bond of appeal. .

Plaintiff moved to dismiss the appeal for two causes : 1. Because more than a year had elapsed since the order of seizure and sale had been granted, before defendant took the appeal. 2. Because the order of the •Judge granting the appeal was not made in the manner required by law.

Defendant took the appeal in time. He had the right to appeal within two years after the decree of the Judge ordering the sale of his property, as he was absent from the State, and resided in another State when the decree was applied for and obtained by plaintiff. See Code of Practice, Article 593.

The order of the Judge granting the appeal -fixed the amount of the bond of appeal that defendant was to give, required defendant to give good and solvent security on the bond, and stated the day on which the appeal should be returned to this Court.

We see no non-compliance with Article No. 574 of the Code of Practice in the order of appeal, and none has been pointed out.

The motion to dismiss the appeal is over-ruled.


text:
    City of New Orleans v. Francis Lacroix.
    Where a Record is so imperfect as to preclude an examination into the case on its merits, and where no suggestion of .diminution of the Recordis made, and no motion to dismiss the appeal is filed, it willberemandodfora new trial.
    APPEAL from the Fifth District Court of New Orleans,
    Eggleston, J. Thos. 3. Bewes, for plaintiff. T. W. Gollens, for defendant.
   Labatjve, J.

The City claims of the defendant $2,872 87, due for city taxes for the year 1859. The defendant filed a general denial and a special defence. '

On trial below, the plaintiff offered in evidence, among other : The assessment roll for the year 1859, and the ordinance of the Common Council fixing the rate of taxation for the year 1859.

The DistrioOudge gave judgment for plaintiff, and the defendant took this appeal.

The record is so imperfect and defective as to preclude an examination on the'3¿érits.'‘ It does not contain the assessment roll for the year 1859, nor the ordinance of the Common Council fixing the rate of taxation for the year 1859 ; nor even is the certificate, attached to the record, signed by the clerk.

No suggestion of diminution of the record was made, and no motion to dismiss the appeal was filed. All that we can do is to remand the case at the cost of the appellant. 9 L. 119.

It is therefore ordered and decreed, that the judgment of the District Court he reversed, and the case remanded to be tried according to law, the appellant to pay the costs of this appeal.


author: LaSAüvé, J.

text:
    City of New Orleans v. E. Cordeviolle.
   LaSAüvé, J.

This cáse présente the same pleadings, defects, omissions " and irregularities'as in the case of the same plaintiff v. Frangois Lacroix, ''just decided; nó diminution of 'the record was suggested, and no motion - filed to dismiss the appeal. We are, therefore, precluded from examin- ’ ing the ease on the merits, and, for the same reasons given in the said ■ case above referred to, we snust remand it. 9 L. 119.

It is therefore ordered and|decreed, that the judgment rendered below be annulled and reversed, and the case remanded to be proceeded in “■According to'law; aiid that the defendant and appellant pay the costs of 'this appeal;'''


text:
    Warneken & Co. v. A. Marchand.
    Where a party takes a note for bonds or moneys, from, one who had embezzled them, and which note went to judgment, they have no right against a thirdperson who received such securities andmoney in pledge. They thereby ratified the pledge, especially when they used part of the money without knowing from whom obtained.
    APPEAL from the Sixth District Court of New Orleans,

      Dwplantier, J. M W. Huntington, for plaintiffs. Durant & Hornor, for defendant.
   Hyman, O. J.

Plaintiffs sued defendant, alleging that H. L. Hanniwinkel had stolen from them twenty Consolidated City Bonds, of $1000 each, and had transferred the same to defendant; that they were the owners of eight of the bonds, and that the other twelve bonds belonged to other persons, but were left with them, plaintiffs, for safe keeping.

They prayed for judgment condemning defendant to deliver up the - bonds or to pay their value, $16,000, to them.

Defendant answered by a general denial. The District Judge rendered judgment in favor of defendant, and plaintiffs have appealed.

The bonds were owned and held by plaintiffs, as alleged, and they permitted Hanniwinkel to have control of the safe in which they were. He pledged them to defendant in borrowing money from him.

A part of the money was borrowed for plaintiffs, and received by them, without knowing from whom obtained.

The evidence, introduced without objection, shows that plaintiffs have confirmed the contract of Hanniwinkel with the defendant. After they were informed that Hanniwinkel had pledged these bonds to defendant, they took his (Hanniwenkil’s) note for the bonds, and for other moneys of theirs embezzled by him, and also obtained judgment against him. on the note.

They thereby ratified the pledge.

It therefore becomes unnecessary to enquire whether defendant took the bonds from Hanniwinkel in good faith or not, or whether the District Judge properly admitted evidence of good faith in defendant, or that Hanniwinkel had not stolen the bonds, to rebut the allegations of plaintiffs that he had stolen them.

Judgment affirmed, with costs.


author: L&sdey, J.

text:
    Widow R. Barnebe v. Mrs. S. Suaer et ux.
    Evidence may be received in explanation of an authentio act when it does not oontradiot, vary, alter, enlarge, or restrict it.
    Where there is nothing in the context of a will, from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible with reierence to extrinsic circumstances, a Court of law may look into the extrinsic circumstances of the case to see whether the meaning of the words be sensible, in any popular or secondary sense, of which, with reference to these circumstances, they are capable.
    A donation made to a minor, undor the age of puberty, must be accepted by his tutor.
    A minor, arrived at the age of puberty, but not emancipated, must accept it under the authorization or with the concurrence of hie curator.
    Nevertheless the parents of a minor, whether he be arrived at the age of puberty or not, whether ho be or be not emancipated, and the other legitimate descendants, even in the lifetime of the parents, though they be neither tutors nor curators to the minor, may accept for him.
    The persons who have treated with a minor, the person interdicted, or of insane mind, or with a married woman, cannot plead the nullity of the agreement, if it is sought to be enforced by the party when the disability shall cease, or by those who legally administer the rights of such person during the disabifity.
    An act shall be passed before a Notary Public, and two witnesses of every donation inter vivos of immovable property, of slaves or inoorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.
    "Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed.
    The action of nullity, or rescission of contracts, testaments, or other acts, is prescribed by five years; and, as prescription raises the presumption juris et de jure, that the donation was duly accepted, the property of the object given is transferred to the donee, without the necessity of any other delivery. Quern de eviotione, tenet actio, cum dem agentem repellifc exceptio.
    All donations inter vivos, made by persons having neither children nor descendants, actually living at the time of the donation, of whatever value those donations may be, and on whatever account they may have been made, should they even be mutual, not excepting such as were made in favor of marriage by any but the ascendants of the married persons, or by the one of them to the other, shall he considered as revoked up to the disposable portion by the birth of children to the donor, even of a posthumous child, or by the legitimation of a natural child by a subsequent marriage, if the child be horn since the donation.
    Donations inter vivos are liable to he revoked or dissolved on account of the following causes : 1. ¡The ingratitude of the donee; 2. The non-fulfilment of the eventual conditions which suspend their consummation ; 3. The non-performance of the conditions imposed on the donee; 4. The legal or conventional return.
    A PPEAL from the Fifth District Court of New Orleans,

      Eggleston, J. Edward Bermudez, for plaintiff. E. Filleul, for defendant and appellants.
   L&sdey, J.

On the 3d November, 1832, by act before Louis T. Caire, then a notary public, in and for the Parish of Orleans, the plaintiff made a donation of a lot of ground, situate in Tehoupitoulas street, to her daughter, then two years old.

In October and November, 1860, after a period of twenty-eight years, she filed two petitions in the Court below, praying that the said act of donation be annulled.

In the original petition, the grounds of nullity were three-fold.

1. That she only apparently donated the said lot of ground to her daughter by the act of the 3d November, 1832.

2. That the donation was never accepted by any tutor or curator of the daughter, or by her, since she became of age.

3. That the act of donation was never executed, and that she always remained in possession.

In her supplemental petition, she urged three additional grounds.

4. That she is the natural daughter of Mary Austives, and the natural mother of her daughter.

5. That when she signed the act of donation, the cholera was raging in this dig, and that the donation never was intended for an irrevocable donation ; that the same was to he revocable.

6. That since the execution of the same act she has had a child, who is still living.

The defendants answered:

1. That the plaintiff shows no ground of action.

2. A general denial.

3. An admission of the execution of the act of 3d November, 1832, and the averment that said act is in due form, good and valid in law.

4. The prescription of five and ten years.

From a judgment.rendered in the lower Court in favor of the plaintiff the defendants have appealed.

In this Court, the case is argued on both sides with distinguished ability, and turn the scale as it may, we are greatly aided in its examination, by the careful and elaborate manner in which each counsel has. prepared and presented the different points on which he relies.

It is argued by the defendants, that the plaintiff shows no cause of action, and that this exception being peremptory, must be considered independently of any other matter of defence.

For reasons, which we shah in due time make known, we think the case should be examined on its merits.

We will observe, before proceeding to investigate the real question involved in the case, that we are satisfied that the act of donation is drawn in due legal form, and that unless the acceptance of it, in the same act is a nullity, it would convey to the donee a good legal and valid title.

The principal ground of nullity, relied on by the plaintiff, to have the donation declared void for want of legal acceptance, was that the person who accepted it for the minor Marie Anstives was not the legitimate but the illegitimate grandmother of the donee, and in order to prove this fact, the plaintiff offered evidence, both oral and written, which was received by the Court, and excepted to by the defendants, who hav© earnestly directed our attention to the bills of exception which they took to the rulings of the Court permitting its introduction.

We do not think the Court erred in receiving this evidence, as it did not contradict, vary, alter, enlarge, or restrict the act which is attacked! The defendants say that the word grandmother has a legal meaning, and the plaintiff cannot be permitted to prove that it means natural grandmother, in the act signed by her. The third proposition laid down by Wegrane, in his admirable work on Wills applies, we think, very aptly to the question now presented. It is to the effect that ‘ ‘where there is nothing in the context of a will, from which it is apparent that atestator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible, in any popular or secondary sense, of which, with reference to these circumstances, they are capable.

The most striking example, he says, are those in which a popular or secondary interpretation has been put upon the word child, son, and my estate, and other similar eases. Thus the word child, though in strict construction it means a legitimate offspring, may be applied to an illegitimate offspring, where the circumstances of the ease make it impossible that the testator, who must have had some meaning, used it in such a strict and primary sense.

So, son means an immediate descendant; where, however, with reference to extrinsic facts, it is impossible that the word can have been used in such, its proper sense, that construction of the word is, of absolute necessity, excluded, and the necessary inference that the testator used the word in some improper or inaccurate sense, lets in the enquiry, in what sense the testator used it. "We think the rule a sound one, and not inapplicable to such a case as that now presented.

It is abundantly proved that Marie Austives, when she accepted the donation, was the natural or illegitimate grandmother of the donee, and this fact established, the plaintiff submits to this Court for its solution, the following legal problems :

1. Was Marie Austives a legal agent ?

2. Was she disqualified from being so bylaw ?

3. Was her acceptance a nullity ?

á. Was that nullity absolute or relative ?

5. Was plaintiff admissible to impugn the act.

6. Was prescription opposable to her ?

7. Was she estopped by the maxim, Quom de evictione ?

I and H. By Art. 1533 of our Code, the only persons designated to accept a donation for a minor, are his tutor, whose duty it is to accept it for him ; his parents and his other legitimate ascendants, who may accept for him, and^this would imply that no other persons whatever may accept for him.

The acceptance of the donation to the donee, made by Marie Austives was, therefore a nullity.

Ill and IY. But whether the acceptance of a donation by an unauthorized person is an absolute or relative nullity is a question of vast importance, and our jurisprudence furnishes us with no exact precedent, to aid in its solution.

For many years in France, previous and subsequently to the passage of the Napoleon Code, this very question has been a vexed one. Among jurists who adopt the one or the other theory, we find the names of the most distinguished writers in that country, so eminent for its profound and brilliant expounders, and commentators of the law, whence our. own Code is mainly derived. In Duplessis v. Kennedy, 6 La., it was said, “fortunately, this Court is not called on to reconcile these discrepancies,” still, as, the question should be put at rest in our own jurisprudence, and we do not hesitate, for reasons which we shall, in due time, adduce, to adopt the conclusion reached by Marcadé, that such a nullity is merely a relative one : que la donation acceptée par un incapable seul, n’est pas nulle absoIvment; elle ne Test qu’au profit de l’incapable. This is the same doctrine as that laid down in the ease referred to of Duplessis v. Kennedy, 6 L. R. 243, which rests on Art. 1785 of our Code ; and which article, we think, viewing a donation as a contract (Marcadé on Art. 894, $ 440, 441), applies as well to this case as to that of Duplessis v. Kennedy.”

It is true that the example given by Marcadé, Art. 935 C. N. $ 650, is where the acceptance is made by the incapable person himself, and not by another for him, and this was the case in Duplessis v. Kennedy; but we tlink that immaterial in determining the nature of the nullity, for Pothier, in treating generally of an acceptance of a donation by an unauthorized person, says: “Nous avons a présent á voir par qiri l’acceptation peut étre faite. Elle peut se faire, ou par le donataire lui-méme, ou par son procureur, soit spécial, soit général, (see Art. 1529 La. Code,) par son tuteur, par son eurateur ou autre administrateur. Une acceptation faite par toute autre personne qui n’aurait pas de mandat et qui déclarerait se porter fort pour le donataire absent, ne serait pas valable, et la donation ne vaudrait que du jour de la ratification expresse qu’en ferait le donataire par un acte devant notaire, dont il doit rester minute.” Now, this would be a mere nullité respective ou relative; for, as observes Biret in his Traité de Nullité, “La nullité absolue, ou d’ordre public, ne se eouvre jamais par la ratification; ce principe est confessé par tous les auteurs, mais la nullité relative, ou respective, peut étre couverte par la ratification de l’acte qui en est vicié.” (Yol. 1, p., 33.)

But, apart from the reasons which we have just advanced in support of the doctrine of relative nullities as applied to this ease, let us look into the section of the Code which treats “Of the form of Donations inter vivos,” commencing at Art. 1523. That is the only article in that section which prescribes the penalty of' nullity and inflicts it, wherever its provisions are not observed, that “An act shall be passed before a notary public and two witnesses, of every donation inter vivos of immovable property,” etc., etc. It can hardly be supposed that the learned jurists who prepared our Code, and the Legislature which adopted it, were not aware of the pending controversy among jurists, as to the species of nullity, whether absolute or relative, which tainted’an irregular acceptance of a donation, and that, had they deemed such an acceptance absolutely void, it would not have been so specially declared.

There is nothing prohibitory in Art. 1533, and any infraction of, or deviation from its enactments, does not fall under the ban of Art. 12 of the Civil Code.

In the ease of Susan Broadwell v. Benjamin Rodriguez, lately decided in this Court, we deemed the rule laid down by Solon, in his Théorie de la Nullité, a sound one (vol. 1, p. 28): “Dans le doute si la nullité est d’ordre public ou de droit privé, le silence du législateur doit étre interpreté en ce sens que la nullité n’a été portée que dans un intérét privé; on con9oit, en effet, que si elle était d’ordre public, le législateur l’aurait exprimé, ou du moins l’aurait donné a connaitre, et que le juge ne pourrait pas s’y méprendre. Dans le doute il'doit toujours se prononcer pour la validité de l’acte. Et heec quidem interpretatio per quam actus sustenitur dicitur regina interpretationem.

In Ross v. Ross, 3 A. 533, it was held, that every relative nullity is susceptible of ratification and is prescribed by ten years. Art. 2218 C. C. and Art. 3507 C. C. says: “ The action of nullity or rescission of contracts, testaments, or other acts, is prescribed by five years, and, as prescription raises the presumption juris et de jure, that the donation was duly accepted, “the property of the object given is transferred ” to the donee without the necessity of any other delivery. Art. 1537 C. C.

Besides the bar .of prescription interposed against the plaintiff’s action, we think she was estopped from prosecuting it, as by law she was, at the time of the donation, the tutrix of the child, Art. 274C.'C., and this, according to the maxim Quern de evictione, tenet actio, cum dem agentem repellit exceptio.

Pothier, vol. 7, p. 447:- “ Si le tuteur avait lui-méme fait la donation a son pupille, il ne pourrait opposer le défaut d’acception; car, si la donation est nulle faute d’acceptation, il en est, en sa qualité de tuteur, responsable de n’avoir pas fait créer un curateur a son mineur pour l’accepter.” “Un pfere, says Marcadé, Art. 935, No. 658, serait dansle méme cas pour 1’enfant, d'ont il serait administrate™? légal; puisqu’il est alors, comme l’est le tuteur aprés la mort de l’un des parents, le représentant de l’enfant, obligé de leur rendre compte de tout ce qu’il a mal fait, ou négligé de faire, pour l’administration de la fortune de cet enfant.”

Troplong, Art. 935, No. 1135, and Toullier, tome 5, No. 202, say: “Mais ce recours doit-il exister contre le tuteur lorsque c’est lui-méme qui est donateur, et qu’il a fait la faute de ne pas faire nommer au mineur un tuteur ad hoc? Il a fait tort au mineur au méme temps qu’il voulait lui faire du bien. Il est garant du préjudice qui en résulte. Au reste la garantie se borne á le priver de l’aetion de nullité.”

And Ooin de Lisle says: “Mais le tuteur méme donateur peut, selon les cireonstances, étre déclaré responsable du défaut d’acceptation, quand ce défaut consiste dans une nullité k laquelle le tuteur a participé; mais, par exemple, si au lieu de laisser agir le subrogé tuteur, il a fait acoepter la donation par le mineur qu’il aurait assisté,- — dans ce cas et d’autres semblables, la responsabilité peut péser sur le tuteur, parceque c’est en eette qualité, et non comma donnateur, qu’il a agi dans l’aote d’acoeptatíon, nul par son fait.”

But there was another ground of nullity: that since the execution of the act of donation, the donor had a child, which is still living. It seems, that the child was an illegitimate one; and, in order to revoke a donation, the child must be legitimate, or legitimated by a subsequent marriage, which is not so in this case. C. C. 1546, 1556. Letand v. Baptiste, 3 Rob. 441; But Article 1546 is repealed by the Act of 15th March 1855, § 16, p. 79, R. S.

We should not have deemed it necessary to examine all the points presented in this case; but we have done so, because they involved impor tant principles of law, and because they have been pressed on both sides with great zeal and earnestness.

The judgment of the lower Court must be reversed.

It is therefore ordered, adjudged [and decreed, that the judgment of the lower Court be reversed.

.It is further ordered, adjudged and decreed, that judgment sustaining the validity of the act of .donation described in the pleadings, passed before Louis T. Caire, a Notary Public for the city of New Orleans, on the 3d November, 1832, be, and it is hereby rendered in favor of the defendants, and against the plaintiff, who is hereby condemned to pay the costs in both Courts.


author: Labauve, J.

text:
    Succession of Henry Feltmeyer.
    An administrator has, the right to leave the State on his leaving with some person residing in the* Parish, or in an adjoining Parish, where the succession is opened, a general and special power of attorney to represent in all the acts of administration, and depositing an authentic copy of the power of attorney before departure, in the office of Recorder of mortgages in and for the Parish where said succession has been opened, which power of attorney must be duly registered.
    A demand to account upon an administrator must be by petition and citation, it cannot he made-by rule.
    APPEAL from the Second District Court of New Orleans,

      Whitaker, J. George L. Bright, for appellant Gerding. Durant <& Hornor, for Pohhnan, tutor.
   Labauve, J.

Henry Feltmeyer died on the 7th September, 1853, leaving a widow and two minor children, Dina of a first, and Anna of a second marriage; the surviving widow was confirmed tutrix, and J. H. Gerding was appointed under-tutor to Anna; an inventory was made and the estimation of the property amounted to §538 50. The widow applied for the administration and was appointed administratrix, but it seems she never qualified nor gave bond. Hermann Pohhnan was appointed tutor, and Frederick Pohhnan under-tutor to the minor Dina on the 23d September, 1858; they only took the required oath, Hermann on the 13th February, 1855, and Frederick on 25th March, 1863; Hermann gave his bond as tutor on the 12th May, 1863. It appears that Anna, of the second marriage, died, leaving for her heirs her mother, Anna Minsterman, and her half-sister, Dina, of the first marriage.

On the 19th day of December, 1853, the widow, Anna Minsterman, in her capacity of administratrix, gave a power of attorney, by public act, to John H. Gerding, to act in her lieu and place. On the 25th April, 1851-, the said administratrix, through attorneys, filed a petition with a 'Statement or account of the debts of the succession, amounting to $153 21, the said account being signed by John H. Gerding, as her agent, and praying for the usual notices which were ordered by the Judge on •the 26th April, 1851. On the 15th May, 1851, the Judge ordered the homologation of said account, and that the funds be distributed accordingly. On the 23d May, 1851, she presented another petition in her said capacity, stating there were no funds on hand belonging to the estate wherewith to pay the acknowledged debts, and that it was necessary to sell the property of the said succession, and concluding by praying for a sale for one-half cash and the balance in six and twelve months’ credit. On the 25th May, 1851, the Judge ordered the sale as prayed for, after the legal advertisements. The property was accordingly sold on the 9th day of August, 1851.

On the 20th February, 1856, John H. Gerding, styling himself administrator of said succession, presented a petition, signed by attorneys, with ■an account said to contain the amount of money received and the debts due by the estate; this amount is signed by himself, and praying that said account be advertised according to law; the Judge ordered that the account be advertised according to law.

On the 1st March, 1856, H. Pohlman, in his capacity of tutor to Dina Feltmeyer, filed an opposition to said account, in which he alleges that said John H. Gerding was never appointed,, administrator of said succession, and has no interest therein, but has intermeddled in said succession and caused great injury and damage. He therefore opposes said tableau being filed and homologated, and prays that said tableau and petition be dismissed; and that said Gerding be ordered to deliver to him, as tutor .aforesaid, all funds and effects ^belonging to said succession and in his possession, or account for the same. On the 23d April, 1856, this account was approved and homologated, so far as not opposed.

On the 9th April, 1863, John H. Gerding answered to the opposition of H. Pohlman, denying that said Pohlman was the tutor of the minor Dina Feltmeyer. He admitted that he never was the administrator of ■said succession; that there was error in the petition filed 20th February, 1856, accompanying the account, wherein it is stated by J. J. Michel, attorney, that your respondent is administrator of this succession. He further alleges that he was the agent'of Mrs. Anna Feltmeyer, tutrix and .administratrix for the settlement and administration of the succession; that said Michel was not his attorney, nor authorized to represent him individually; wherefore, he prays and joins in the prayer of the opposition of Hermann Pohlman, that the said petition and account, filed on the 20th February, 1856, be dismissed.

On the 5th June, 1863, Hermann Pohlman, as tutor of Dina, took a rule on J. H. Gerding to show cause why he should not deposit in Court, or hand over to the mover in this rule, the $477 92 he admits he has received. The rule was made absolute on 18th June, 1863, and Gerding ordered to deposit in Court, within five days, $723 12, subject to the further order of the Court.

From this judgment on the rule John H. Gerding took this appeal.'

These proceedings are so irregular throughout that it is difficult to know how to proceed in examining the actions of the Judge below and what judgment we shall render ; but we must start from certain principles : We have seen that widow Henry Feltmeyer was appointed administratrix, but she never qualified nor gave bond; that she afterwards appointed, acting for herself personally, and as such administratrix, said John H. Gerding, her agent, general and special, and the latter undertook to act as such in the said estate, and the Court acted as if the said widow had been legally qualified, and we must, therefore, proceed in this matter under the same assumption ; that the said widow left the State in 1856, and nothing shows that she ever returned. Under Art. 1145 C. C., as amended by Statute, 24th April, 1847, p. 115, she was permitted to leave the State, on her leaving with some person residing in the parish, or in an adjoining parish, where the succession is opened, a general and special power of attorney, to represent her in all the acts of her administration as administratrix, and depositing an authentic copy of the power of attorney before her departure, in the office of the recorder of mortgages, in and for the parish where said succession bhs been opened, which power of attorney was to be duly registered.

To the rule filed 21st May, 1863, by Hermann Pohlman, tutor of the minor Dina, showing that said John H. Gerding refuses to hand over to said tutor, the assets of the succession; and ordering that said Gerding show cause, on the 27th May, 1863, why execution should not issue against him for the sum of $1,036 35; said Gerding excepted, on the grounds that said rule had been served on 25th May, 1863, and that he has not had sufficient time to summon his witnesses. That said mover cannot proceed by rule, but by ordinary action; and that said Pohlman has no right to take this rule, and he denies all and singular the allegations necessary to maintain this rule, etc. On the 27th May, 1863, the following order was entered:

“When, after hearing pleadings and counsel, it is ordered by the Court that the rule be made absolute, so far as to require said J. H. Gerding to file an account, within five days, of his connection with this succession.”

The said Gerding, in rendering this account, says that he reserves all defences set forth in his answer to the rule, and has no account to render, as he was not administrator, but only agent of the administratrix; but, that it may not be said that he is guilty of contempt, he now files his account between himself and the administratix.

We have omitted to state, at its proper place, that, on the 20th April, 1863, the Court below had ordered that John H. Gerding do hand over to Hermann Pohlman, opponent, when duly qualified, by giving security as tutor, the assets of the succession.

We are of opinion that the District Court erred in not sustaining the exceptions to the rule. We consider this rule in the nature of a demand to account, which must be by petition and citation, in the ordinary manner, and with the usual delays. Code of Practice, Arts. 997, 998, 1000, 1008, 1033.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered and decreed that the exception be sustained; that the rules of the 21st May, and of 5th June, 1863, respectively, be dismissed, and all orders upon them set aside.

The appellee to pay costs in both Courts.


text:
    S. E. Woodworth v. Morse & Moore.
    By the Act of January 10th, [1860, an inn-keeper may limit his liability as a depositary by keeping “posted upon his door and other public places in his house of entertainment, written or printed notices to his guests and customers, that they must leave their valuables with the landlord, his agent or clerk, for safe keeping.”
    Inn-keepers are responsible as depositaries, for effects brought to their house by travelera.who lodge therein; they are responsible even when their effects are stolen, unless they show that the same were stolen by force and arms, or with exterior breaking of doors (ou avec effraotion exterieure), or by any other extraordinary violence (on antre force majeure).
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. Morgan & New, for plaintiff. W. H. Hunt, for defendant.
   Hvman, C. J.

Plaintiff, while on a journey to Washington City, stopped, in the latter part of the month of October, 1862, at the City Hotel in the city of New Orleans, where he lodged and deposited his trunk, containing seven hundred and eighteen dollars (five hundred and sixty-eight dollars of which amount belonged to him), some wearing apparel, official documents, etc.

On the afternoon of the 31st day of said month the inner door of the room in which his trunk was deposited was broken open, the trunk was prized open, and the money therein-stolen.

He sued defendants to recover from them, as keepers of the hotel, the amount of the-money stolen, which belonged to him, to wit: the sum of five hundred and sixty-eight dollars, with interest.

The District Judge gave judgment in favor of plaintiff for this amount, •with interest ahal costs of suit.

Defendants have appealed.

The facts, as stated above, are substantially proven.

There is no error in the judgment of the lower Court.

Inn-keepers are responsible, as .depositaries, for effects brought to their house by travelers who lodge therein; they are responsible even when their effects are stolen, unless they show that the same were stolen by force and arms, or with exterior breaking of doors (ou avec effraction extérieure), or by any other extraordinary violence (ou autre force majeure). See Civil Code, Arts. 2936, 2938, 2939.

These articles do not expressly limit the extent of the responsibility of inn-keepers for the effects brought by travelers to their houses; yet, the decisions of our Court have confined their responsibility to clothing and money usually and ordinarily carried by travelers in their trunks for the purposes of their journeys.

It is unnecessary in this case to question the correctness of these decisions, as the money in plaintiff’s trunk was not an excessive or unusual amount for such a journey as he had undertaken.

Defendants might have easily avoided the responsibility imposed upon them by the articles of the Code referred to, by giving the notice authorized in an Act of the Legislature passed on the 16th of January, 1860, for the protection of hotel-keepers.

Judgment affirmed, with costs.

Howell, J., recused.


text:
    Succession of Rebecca Bookter.
    If a tutor should die, or absent himself from, the State after bis appointment, another tutor shall be appointed in bis place by the competent Judge; and there is no need of a judgment removing him from the tutorship.
    APPEAL from the District Court of Parish of Livingston,

      Martin, J. D. N. Hennen, for Watterston. H. Duncan, for defendant and appellant.
   Hyman, C. J.

A family meeting was convoked, as authorized by the fourth section of the act entitled “An act relative to minors,” approved-March 15th, 1855, to nominate a tutor (who should not be required to give security), for the minors, George Charles, David and Bernard Watterston, alleged to be the heirs of George W. Watterston and Rebecca Bookter, deceased.

It was convoked, because D. A. Watterston, formerly their tutor, had permanently left the State, and no one would take upon himself the tutorship of the minors, and give security.

The family meeting recommended that William Duncan should be appointed tutor of the minors.

D. A. Watterston opposed the homologation of the proceedings of the family meeting, on the grounds that they were illegal and premature, as. he was yet the tutor of the minors, and no judgment had been rendered, removing him from the tutorship; that Duncan was not suitable for the tutorship, that no security was required of him, and that security should be required.

In his, Watterston’s opposition, he admitted that he resided in the District of Columbia.

The Judge sustained the opposition of Watterston, and ordered suit to. be instituted to remove him from the tutorship.

Duncan has appealed from this judgment of the Court.

The first ground of opposition would have been valid, as no judgment-had been rendered against Watterston removing him from the tutorship, if it were not true that he had permanently removed from the State of Louisiana.

By his leaving the State and by his making his residence in the District of Columbia, he ceased to be tutor of the minors as much so as if he had ceased to exist.

There was no need of judgment removing him from the tutorship.

When such facts became known, it was the duty of the Judge to appoint another tutor in hisktead. See C. O. Art. 298.

No evidence was introduced showing that Duncan was incapable or unsuitable for the tutorship, or that any one would become tutor for the minors, and give security.

It is ordered, adjudged and decreed that the judgment of the lower Court be avoided and reversed, and it is further ordered, adjudged and decreed, that the proceedings of the family meeting be confirmed and homologated.

Opponent to pay costs of opposition, and of appeal.