text:
    E. Edwards v. W. O. Smith and L. F. Steele.
    The exception to an action by one curator, of the nonjoinder of the other curator, is a dilatory exception, and comes too late after judgment by default.
    PPEAL from the District Court of Dossier, Drew, J.
    XJL Looney, for plaintiff and appellant.

      Fout c6 Duncan, for defendants.
   Buchanan, J.

This is an action brought by E. Edwards, in his capacity of curator of the estate of Brinkley B. Hallon, deceased, against W. O. Smith, as drawer of a promissory note, and L. F. Steele, as surety. A default was entered against both defendants, after due citation ; no defence was ever filed by Steele ; but Smith filed an answer denying the plaintiff’s authority to bring the suit, pleading the general denial, and averring, that if he ever executed the note sued on, the consideration had failed; that it was given in consideration of a certain negro man slave, named Raleigh, who at the time of the sale, was affected with an incurable redhibitory disease. The petition concludes with a prayer that the note be cancelled, the sale set aside and annulled and for a trial by jury. The trial by jury was refused.

The evidence shows that Erasmus Edwards and Andrew Lawson, were appointed curators of the estate of Brinkley B. Hallon, and as such, caused to be sold in the course of administration, and under an order of the court, the slave Raleigh. Smith became the purchaser, for the sum of $1108, payable in twelve months, for which amount he gave the note upon which the plaintiff sues, with Steele as surety. It is admitted by the pleading, (and the evidence which was received without objection, fully establishes the fact,) that the note was given as the price of the slave Raleigh. There was judgment for tho plaintiff, and both defendants have appealed. It is urged that though the plaintiff’s petition alleges the death of his colleague in the curalorship, yet nothing in the evidence sustains the allegation. Without passing upon the merits of the exception to the plaintiff’s capacity to sue, we think that as it was of a dilatory nature, it could not be urged after a judgment by default had been entered. Upon the merits, we do not perceive upon what ground the defendants expect to reverse the judgment appealed from.

Nothing in the evidence supports the allegation that the slave was diseased. The privilege allowed by the judgment was not claimed in the petition, but as it results necessarily from the defendants’ admission in his answer, and from the evidence received without objection, it cannot be pretended that he was taken by surprise. Under the prayer for general relief, we think there was no error in recognizing an incidental right, the evidence of which was placed upon the records by the defendants themselves. See Weiner & Co. v. Richardson, 5 An., p. 646. Considering, however, the nature of the pleading in the District Court, we think his claim for damages, as for a frivolous appeal, should be rejected.

It is ordered that the judgment appealed from, be affirmed with costs, and the prayer for damages as for a frivolous appeal rejected.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    T. Talbert v. E. A. Stone.
    To sustain an action for malicious prosecution, the prosecution complained of should be shown to have been destitute of probable cause. What will or will not amount to probable cause, will depend on the circumstances of each particular case.
    Probable cause does not depend on the actual state of the case in point of fact, but on the honest and reasonable belief of the party prosecuting.
    An overseer who is to receive from his employer, in compensation for his services, the one-fifth of the crop, must, in an action against his employer for his wages, show the value of the crop.
    from the District Oourt of Franklin, Barry, J.

      Riven, for plaintiff and appellant.

      Morrison, Hough, and Jones, and Mc-Qui/re & Ray, for defendant.
   Buchanan, J.

Plaintiff employed defendant as overseer of his plantation, during the year 1847. He discharged him at the end of the year, and in May, 1848, commenced this suit for the price of a mule, the hire of three slaves, keeping of horse, &c. The principal item, however, is a sum of six hundred dollars, which plaintiff alleges defendant stole from him on the 26th of December, 1847.

Defendant pleaded the general issue; and reconvened, claiming wages as overseer under a contract, and also five thousand dollars as damages, because, “ said Talbert, in violation of good faith, discharged this respondent without compensating him for his labor, and from unjust and malicious motives charges this respondent with theft, in order to injure the character of this respondent and excite prejudices in the mind of the community against him.”

This issue was tried before a jury, who, on the 1st of December, 1849, found a general verdict in favor of the plaintiff for five hundred and three dollars and fifty cents. Defendant appealed, and our predecessors, at the October term, 1851 (not reported), reversed the verdict, not being able to agree with the conclusions of the jury, and remanded the cause for a new trial. On the second trial in the District Oourt, in October, 1853, the jury returned the following verdict: “We, the jury, find for defendant for overseer’s wages, the sum of two hundred and twenty-five dollars, and for damages, the sum of three thousand five hundred dollars.”

From this verdict, and the judgment rendered thereupon, the present appeal is taken.

The first, and most important matter to be examined, is the claim for damages for a malicious prosecution. It is a fundamental principle of law in reference to such actions, that the prosecution complained of, should be shown to have been destitute of probable cause. Greenleaf’s Ev. § 449. What will or will not amount to probable cause, says that author, at § 455, will depend upon the circumstances of each particular case. And again: “ Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting.”

Plaintiff brings this suit, in part, to recover from defendant, a sum of money which he alleges the latter stole from him. That there were some circumstances of probable cause for such a claim, may be inferred from the verdict of the first jury which tried this cause. In reference to that verdict, our predecessors said: “ A careful examination of the record has satisfied us that the verdict of the jury rests upon the belief, on their part, that the money claimed by the plaintiff had been stolen by the defendant. And the prompt and decisive action of the District Judge on the motion for a new trial, shows that, in his opinion, that fact was free from all reasonable doubt.” The cause was remanded.on that occasion, not because there was no probable cause for the claim for stolen money, but because, in the opinion of the Supreme Court, differing in that respect from the jury and Judge by whom the cause had been tried in the first instance, there was not sufficient proof of the theft. In that particular, we are not prepared to say, that we disagree with our predecessors; for the cause is before us on precisely the same evidence as before them, with the addition of some evidence as to character, which is about equally balanced. But because there is not sufficient legal proof to convict the defendant of the crime charged, it by no means follows, necessarily, that plaintiff is to be mulcted in damages for having made the charge. Our predecessors have not said, that there was no probable cause for the charge shown by the evidence. Their language points to the directly opposite conclusion. We will not recapitulate the evidence. Suffice it to say, that we may, without violence, infer from it, in the language of Greenleaf, “ an honest and reasonable belief,” on the part of plaintiff, in the truth of his charge.

The verdict and judgment for damages, are, in our opinion, erroneous upon legal principles.

The jury have also allowed defendant two hundred and twenty-five dollars for wages as overseer. The appellant complains of this allowance as not justified by the evidence, under the pleadings.

In his answer and plea in reconvention, the defendant claims wages as overseer of plaintiff’s plantation for the year 1847, under a special contract, to wit : “ That this respondent was to receive from said Talbert, in compensation for his services, the one-fifth of the corn, fodder and crop of cotton made on said place during said period.” Under this allegation, it was incumbent on defendant to show wha.t was the value of the corn, fodder and crop of cotton made pn plaintiff’s plantation in the year 1847. There is no evidence to this point in the record.

The claim of plaintiff for the value of a mule, say one hundred dollars, is made opt to our satisfaction.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; that plaintiff recover of defendant one hundred dollars, with costs in both courts; that upon so much of the defendant’s demand in reconvention, ns claims damages of plaintiff-for slander and 'for malicious prosecution, there be judgment in favor of plaintiff and against defendant; and upon so much .of said recQnyention, as claims wages of overseer, there be judgment of non-suit,


author: Lea, J.

text:
    Robinson v. J. M. Landrum.
    Defendant pleaded the general denial, and admitted that plaintiff had done work for him, but aver, red that he had paid for the work in full. Held: that this averment did not waive the general denial, and operate as a recognition of the whole debt.
    PPEAL from the District Court of Caddo, Land, J.
    X3L Grain & Nutt, for plaintiff.

      Williamson & Landrum, for defendant and appellant.
   Lea, J.

The plaintiff claims $959 52, with interest from judicial demand, for services rendered and labor and materials furnished, in completing a dwelling house for the defendant, as shown by a detailed account annexed to the petition, for which amount he .claims judgment with privilege upon the building. An exception having been taken to the indefinite character of the account, one moré specific was furnished with the leave of the Court.

For answer to the plaintiflt’s claim, as thus set forth, the defendant pleaded a general denial, admitting, however, that the plaintiff “had done work for him” on the building, but that he had paid for the same in full, to-wit: the sum of $310. The case was submitted to a jury, who gave a verdict in favor of the plaintiff, for the sum of $959 52, subject to a credit of $810, with legal interest from judicial demand; and in accordance with the verdict a decree was rendered in favor of the plaintiff for the sum of $649 52 with interest.

On the trial of the case, a bill of exceptions was taken to the charge of the Court, instructing the jury, “ that the plea of payment waived the general denial and was an admission of the debt sued for and that the burthen of proof was on the defendant to show the payment.”

Under the circumstances we think the charge was calculated to mislead the jury, and the evidence is not such as to satisfy us that in the absence of such a charge, they would not have arrived at a different conclusion.

The doctrine that the plea of payment admits the debt, only affirms the general principle that litigants should be consistent and truthful in their pleadings,, and cannot be allowed to assume positions which are contradictory.

An allegation that a debt has been paid, is certainly an admission that it once existed, but an averment by a defendant that he has paid all that he admits to have been due, coupled with a denial of further indebtedness and specifying at the same time the amount thus paid, though it may operate as an admission pro tanto, cannot be considered as a recognition of the whole of the plaintiff’s demand. The answer of the defendant is consistent with itself, and if supported by the evidence would present a defense in every respect equitable*

We have been requested by the plaintiff’s counsel, should the charge of the District Judge be deemed erroneous, to adjudicate finally upon the merits of the case. We would cheerfully do so if the judgment which should be rendered did not, in our opinion, depend to a great extent upon the degree o.f credit to which the testimony of the several witnesses would be respectively entitled,, ■with reference to which we have no means of arriving at any other- than a conjectural result.

It is ordered that the judgment appealed from be reversed, and the case remanded for further proceedings according to law, and that the appellee pay the-costs of this appeal.


author: Spoeeord, J.

text:
    Estate of Ryan.
    The Act of March 16th, 1854, which made it the duty of the District Judges to establish among themselves a system of interchange for the trial of recused cases, is not unconstitutional.
    PPEAL frem the District Court of Catahoula, if. W. Richardson, J.
    XJL Mayo, for plaintiff.

      Crawford, for opponent and appellant.
   Spoeeord, J.

The administratrix of the succession of A. JP. Ryan, appeals from a judgment ordering a sale of property to pay debts of the succession.

The judgment was made final after default, and the appeal was taken by motion in open Court at the same term. _

The appellant seeks to have the judgment annulled on appeal, (1st) because it was rendered by the Judge of the 12th district, presiding in the 11th district, and (2dly) because it was rendered at a term not held according to law.

I. — The Act of March 16th, 1854, (Sess. Acts, p. 109) made it the duty of the District Judges to establish among themselves a system of interchange for the trial of recused cases.

We see nothing repugnant to the Constitution in the features of that Act. The Article 81 which requires that “ the Judges of the several inferior courts shall be elected by the duly qualified voters of their respective districts or parishes,” provides only for the mode of electing Judges, and does not prescribe their duties. This matter was fully considered under analogous provisions in the constitution of 1845 ; and we concur with the views of our predecessors as expressed in the case of'the State v. The Judge of the Fifth District, in 5 An. 756, most of which are applicable to the present case.

II. — The appellant complains that the November term of the District Court for the parish of Catahoula, established bjr the Act of Eeb. 15th, 1854, (Sess. Acts p. 12) was abolished by the subsequent Act of March 16th, 1854, (Session Acts p. 105). But the second Section of the latter Act provides that it “ shall not be considered as repealing, or in any way impairing any Act at the present session of the Legislature, amendatory of Section third, of the Act approved April 29th, 1853, in other respects than as amended by this Act; but such amendatory Act shall have full force and effect.”

We find no error in the judgment appealed from; it is, therefore, affirmed with costs.


author: Sfoeford, J.

text:
    Doles, Tutor, v. Cockrell.
    It is sufficient to sustain a petitory action against a mere possessor, for the plaintiff to show a title translative of the property sued for, together with the Receiver’s certificate showing that the land was located by the person making the title.
    from the District Court of Bossier, Drew, J.

      Crawford, for plaintiff and appellant.

      Looney, for defendant.
   Sfoeford, J.

The plaintiff produced a title translative of property to the land in question, derived from one A. D. Palmer. He also produced a duplicate of the Receiver’s certificate, which indicates that the land was located by A. D. Palmer with a State Internal Improvement warrant.

This is a sufficient title to support a petitory action against a mere possessor, unless successfully impeached for fraud. Guidry v. Woods, 19 L. 334; McGill v. McGill, 4 An., 265; Robertson v. Wood, 5 An., 198.

It matters not, so far as this defendant is concerned, whether the investment of the minors’ funds was authorized by a family meeting or not. The title vested in them, or in their tutor who made the purchase.

But the defendant contends that the fraud or bad faith of the plaintiff, Boles, towards himself taints the plaintiff’s title, and requires that the title should be decreed to enure to his benefit.

Upon a careful examination of the evidence, we are unable to concur with the Judge a quo in this view of the case.

It may be conceded that the plaintiff, Boles, violated his duty towards Cockrell, and perhaps deceived him. But Cockrell undertook to show that the land in question was entered by Doles whilst the latter was clothed with an agency from himself to enter it, and that it was entered with his own funds or the proceeds of his property.

Neither proposition is proved. Doles could hardly have been his agent on the 8th February, 1853, when the land was entered in the name of Palmer, for a suit was then pending, in the name of Cockrell v. Doles, for an alleged violation of the trust with reference to one-half of this very land. And the evidence shows that the land was entered, not with the funds of Cockrell, but by means of a warrant forwarded by Palmer, who testifies that he was subsequently reimbursed ©ut of the funds belonging to the minor wards of the plaintiff. We cannot say that the land in reality belongs to Cockrell, because the year before it was entered Cockrell gave Boles a watch and some money to enter it for him, and also assigned a pre-emption certificate to him, whilst neither the watch, money nor pre-emption certificate are shown to have had any connection with the entry actually made.

The judgment must, therefore, be reversed.

The question of the improvements, the value whereof is claimed in reconvention, must be reserved, as the evidence is too indefinite to enable us to settle the rights of the parties definitively.

It does not appear precisely when they were made. If before the entry, under the authority of the case of Hollon v. Sapp, 4 An, 519, the defendant is entitled to nothing for them, unless, perhaps, he alleges and proves that he was in a situation to avail himself of the pre-emption laws at the time he made the improvements with that view.

If they were made after the entry, the Article 500 of the Civil Code would seem to apply to the case, and the plaintiff would have his election to keep the improvements, upon reimbursing to the owner of the materials their value and the price of the workmanship, or to compel the defendant to take away or demolish the same at his own expense.

The value of the rent is not definitively proved, and this question will also be reserved.

It is therefore ordered, that the judgment of the District Court be reversed, and that the plaintiff, W. M. Doles, tutor, etc., be decreed to be the owner of the land in controversy, and that the cause be remanded to the District Court for further proceedings according to law touching the questions of improvements and rents; no writ of possession to issue until a final decree thereupon. It is further ordered that the costs of the appeal he borne by the defendant and ap-pellee.


author: Spohford, J.

text:
    C. H. Morrison v. C. Keller.
    An administrator cannot in a new answer, set up other matters of defence, some of which are inconsistent with the allegations of the first answer.
    Where it is in proof that defendant had acknowledged he held the land sued for under the plaintiff, he is precluded from disputing plaintiff’s title, or availing himself of any formal defects in it.
    C. 0., 3409, 8480.
    from the District Court of Ouachita, Richardson, J.

      C. IT. Morrison, in pro. per.

      Garrett & Ludeling, for defendant and appellant.
   Spohford, J.

This is an action brought by the plaintiff to recover of the defendant a tract of land upon the Bayou de Siard, containing 400 arpents, and known as the Dawson tract.

The defendant, after a general denial, pleaded that she had been in possession, as owner, for more than a year, of the tract of land, which the plaintiff sued for, and that the same was situated in the Bastrop grant.

Pending the suit the defendant died, and her administrator filed a new answer setting up other matters, some of them inconsistent with the allegations of the first answer. The administrator eould not withdraw the judicial admissions made by the deceased, and, under that view of the case, it becomes immaterial to notice the second answer further.

The locus is thus ascertained beyond dispute by the pleadings. Has the plaintiff made out a sufficient title as against the defendant?

Upon the merits our opinion coincides with that of the District Judge. The defendant, by her written and oral acknowledgements, which were adduced in evidence by the plaintiff upon the trial, that she held under the plaintiff, has precluded herself from disputing his title or availing herself of any formal defects therein. C. C., 3409, 3480 ; Wells v. Hickman, 3 Rob., 3; Broughton v. King, 9 Rob., 217.

The sheriff’s deed is apparently a just title translative of property.

It is unnecessary to discuss the bills of exceptions presented by the defendant’s counsel, as we are satisfied that the deceased defendant possessed as the tenant of the plaintiff.

The plaintiff acquiesces in the adjustment of the question of rents and improvements made by the District Judge.

The judgment is, therefore, affirmed, with costs.


author: Spoitokd, J.

text:
    M. Wells v. Roach, et al.
    That clause of the Act of March 16th, 1842, which forbids suit to be instituted against the securities on certain bonds “until the necessary steps have been taken to enforce payment against the principal,” must not be so construed as to deprive the creditor of recourse against the surety until the insolvent estate of the principal to the bond has been liquidated. In a case where an execution cannot be taken out against the property of the debtor, where his succession is under administration, the creditor may proceed against the surety.
    from the District Court of Caddo, Spofford, J.

      Crain & Nutt, for plaintiff and appellant:
    The issue in this case, and the only issue, is: Has Mary Wells exhausted all legal remedies against the succession of J. W. Hardwick? If she has not, she cannot for the present, pursue the defendant, Watson. See Act, 16th March, 181-2, p. 300. Canal Bank v. Brown, 4 A. R. 545. Kemper, et al. v. Splam&, 4 A. R. 846. Boss v. Chambiss, 5 A. R. 158. Wilson v. Murrel, 6 R. R. 68; and the authorities cited. Copley v. Bichardson, 4 A. R. 572. See Alley v. Hawthorne, 1 A. R. 122.

      Landrum, for defendant
    The case of Berry A. Wilson v. John Murrel, 6 R. 68., is not parallel to the case at bar. In the case cited the defendant was only liable as administrator, and the steps, pointed to in articles 1055, 1056 and 1057, were necessary to be taken for the purpose of ascertaining- whether there were funds in the hands of the administrator which could be applied to the payment of the debt, and if there were that execution might be awarded against him personally for them, in case he refused to pay. But, in this case the defendant, Hard-wick, is liable absolutely in his individual capacity, upon a final settlement of his administration of the succession of Wells. It is not the surety of Ha/rd- ' wields curator that is sought to be made liable, but the surety of Well's curator. The death of Hardwick renders it impossible to get out a fi. fa. against him, and, notwithstanding the Act of 1842, this case cannot be distinguished from Alley y. Hawthorne, 1 A. 122, for in that case the Court recognized the necessity of a ft. fa. and return of nulla bona, and which indeed is required by the statutes of 1839, before proceeding on appeal bonds against the surety. See also succession of Johnston, 1 A. R. 76.
    Suppose this decree had been rendered against Hardwick personally, during his life-time, and while it was being remanded to the Court below, Hardwicíe had died and his succession had been left vacant, and a curator had been appointed, would wo have been compelled, even if the succession had been solvent, to have waited the delays of administration, particularly the three months delay required by article 1167 of the Civil Code, which is absolutely required of him. What necessary steps could betaken against the principal? How then can the death of Hardwick at an earlier date, or how can the fact that his administration is opened when this suit is brought, alter the case ?
    The whole history of the settlement of successions in Louisiana evinces the absurdity of such a notion. In the case decided in 6th R. the creditor perhaps was not entitled to the payment of his whole debt. The estate was not closed up, and it might have turned out insolvent. It was necessary, therefore, to compel the administrator to show the condition of the estate, so that it might be known what the surety was liable for. But in this case the amount for which the surety was liable is fixed beyond doubt, and if the facts of the case prevent the necessary steps being taken, he is immediately liable. If Hardwick was living we should have to get out a fi. fa. and a return of no property; we could not be required to do more — his deatli prevents that. Besides, the decision in the case cited was no doubt based upon the same course of reasoning which -resulted in the decision in Chalaron!s case, 9 L. R. 227, which I think is very successfully refuted in the able decision of Alley v. Hawthorne, pronounced by Chief Justice Kustis, already cited.
    Besides, we should consider the reason which prompted the Legislature to make the enactment according to the 17th and 18th articles of the 0. O.

      Now, the very summary remedy which was heretofore given to creditors of successions against the surety of the curator, as evidenced by the decision of Fórmele v. Brashear, 16 L. R. 72, was, perhaps, thought to be a hardship on sureties — but the Legislature never could have intended to retard the final settlement of the succession.
   Spoitokd, J.

Bannister Wells removing with his negroes from Mississippi to the West, died at the house of J. W. Bardwiclc, in the parish of Caddo, early in 1849.

Eao'dwiclc procured the appointment of curator to his succession, and administered it for upwards of two years as a vacant succession. F. R. Roach and Alfred Emris, (the latter herein represented by Mrs. Watson,) were sureties on his bond as curator.

The present plaintiff, Mary Wells, was recognized as the instituted heir of Bannister Wells, her husband, who had voluntarily separated from her in Mississippi. After many delays she succeeded in getting possession of the property left in the hands of Em’dwick. He filed the final account of his administration, which embraced very large charges, some of them for medical services rendered by himself to the slaves belonging to the succession. Mary Wells opposed the account, denying the correctness of many of the charges, and alleging that Bardwiclc was liable for the hire of the slaves which he had employed in his own service during his curatorship, without accounting in full for their wages.

The trial of this opposition resulted in a judgment in the District Court which liquidated the balance due to Mary Wells by J. W. Bardwiclc, upon a final settloment of his account of administration, at the sum of $1080 92, for which judgment was rendered in her favor against him with five per cent, interest from the 14th April, 1852, the date of the judgment.

Bardwiclc appealed to the Supreme Court from the judgment, and F. R. Roach became his surety on a suspensive appeal bond.

On the 18th April, 1858, the judgment was finally affirmed by the Supreme Court, with costs, and J. W. Bardwiclc having died pending the appeal, it was ordered that the decree be binding upon his succession, represented by David J. Boolcs, curator.

On the 80th December, 1853, Mary Wells took a rule on Boolcs, curator of Bardwiclc's succession, to show cause why this judgment should not be paid immediately.

Upon a hearing Boolcs proved that all the property of Bardwiclc's succession had been sold, and would not realize for one or two years more than enough to pay the privileged debts, and then would not pay more than from twenty-five to forty cents on the dollar.

Whereupon the rule was discharged.

Mary Wells then instituted this suit against F. R. Roach, surety on the appeal bond in the suit above alluded to, and against F. R. Roach and the representative of Alfred Emris, sureties on the official bond of Eardwich, as curator of the succession of B. Wells, to recover of them, in solido, the amount of her final judgment against Bardwiclc.

There was judgment against Roach as surety on the appeal bond, and • against Roach and Mrs. Watson jointly, as securities on the curator’s bond.

The defendants have appealed.

The sole matter pleaded in defence of the action, is the statute of March 16, 1842, § 6, (Session Acts p. 302,) which provided : “ That the Courts of Probate shall have exclusive cognizance of all suits or actions against sureties on the bonds of appeal, and all others which they are bound by law to receive or exact from appellants and administrators, tutors, curators and testamentary executors generally; and no such suit shall be instituted against the security, until the necessary steps have been taken to enforce payment against the principal.”

Thus, the only question presented in the pleadings in the brief of counsel is whether “the necessary steps have been taken by the plaintiff to enforce the payment of her judgment against the estate of Hardwick, the former curator of the succession of Bannister Wells."

Erom an inspection of' the proceedings and the evidence it is conclusively shown, as before stated, that a judgment for a liquidated .amount, viz: that claimed in the petition, was obtained against Hardwick, and that while an appeal was pending from said judgment Hardwick died. The judgment having-been affirmed against his representatives, the plaintiff, in our opinion did take all necessary steps to enforce payment against the principal, by taking a rule upon the representatives of Hardwick's succession, to show cause why the judgment should not be paid. The action of the Court upon this proceeding, in our opinion, rendered any other “stop” unnecessary in order to enable the plaintiff to proceed at once against the sureties of Hardwick, both on his bond as curator and appellant. The rule was dismissed, it having been shown that all the property of Hardwick's estate had been sold, and that not more than an amount sufficient to pay the privileged debts would be realized for one or two years, and then only from twenty-five to forty cents on the dollar.

The case comes cleárly within the scope and application of the principle laid down in Alley v. Hawthorne, 1st An. p. 126. Adopting the language of this decision: “ Where an execution cannot be lawfully taken out against the property of the debtor, (as in the case at bar,) where his succession is under administration, the law will not turn the judgment creditor over to a labyrinth of creditors, to await the tardy liquidation of a litigated or insolvent succession.” He has done all that he can do, and all that he is bound to do, unless we hold that he can have no recourse against the defendant until the insolvent estate of Hardwick has been finally liquidated. This would not in our opinion be a reasonable construction of the law regulating the right and liabilities of this class of sureties.

It is ordered that the judgment of the District Court be affirmed with costs, and that the decree be also binding upon the succession of F. B. Roach, herein represented by Benjamin L. Hodcje, the executor of the deceased.


author: .‘Spoitokd, J.

text:
    Dunbar et als. v. Dinkgrave et als.
    The Police Jury authorized its President to transfer to the Sheriff a note in payment of his fees.— Held : That the transfer being incomplete before the Sheriff had agreed to take it, the note was not liable to seizure under garnishment process to pay the Sheriff’s debts.
    It seems that the debt due by the parish to the Sheriff for fees of office is not subject to seizure under execution. O. 0.1987, 0. P. 647.
    from the District Court of Ouachita, R. W. Richardson, J.
    Plaintiffs propounded interrogatories to several persons — -one of whom, John T. Ludeling, was asked whether at the time of the service thereof, or since, he had in his possession or under his control, individually or otherwise, “ a note executed by John T. Simmons, William A. Simmons, Francis Hassen and Elizabeth Gilbert, dated about the 17th December, 1853, for four thousand dollars, and due March 1st, 1854, drawing eight per cent, per annum interest after due ? If so, state where said note is now, and to whom it was made payable, and if you have it, produce it.” And, “ had you at the time of the service of these interrogatories on you, or have you since, as President of the Police Jury of the parish of Ouachita, transferred to William H. Birilcgrame, Sheriff, and the District Attorney, the note described in the ordinance of the Police Jury approved 2d January, 1854, in pursuance to the requisites of said ordinance, a printed copy of which is hereto annexed for reference ? If so, when did you make said transfer, and what amount did you transfer to each ?■— was it not one-half of said note to each? If in any other way, state it particularly.'”
    The-ordinanoe of the Police Jury is as follows : “Be it enacted, &c., That the first of the five notes executed by William A. Simmons, John T. Simmons, Elizabeth Gilbert and Frances Hassen, in consideration of the sale to them of the property by the agent of the parish, at the Sheriff’s sale in the suit of The State-of Louisiana v. Edward W. Gilbert et als., be transferred to the Sheriff and the District Attorney, in payment of their fees. Be it further enacted, That the President of the Police jury be and he is hereby authorized to transfer the said first note for four thousand dollars, with interest, dated ITth December, 1853, and due first March', 1854, and the mortgage to secure its payment, to.the said collecting officers, and that he be authorized to take their receipts for the amounts by them collected on the bond in the above entitled cause.”
    In the answers of John T. Ludeling to the 4th interrogatory, he says : “ As President or agent of the Police Jury, I had in my possession the note described in the fourth interrogatory; but, in accordance with the ordinance of the Police Jury, I transferred it to Robert J. Oaldwell, District Attorney, and William H. Binlcgrave, late Sheriff of the parish of Ouachita, and delivered it to them. Up to the time of the transfer of the note to William H. Birikgrave and Robert J. .Caldwell, I held the note as the agent of the parish under the ordinance referred in the interrogatories, which ordered me to transfer it to them, and to take their receipt for the fees due to them by law for collecting the bond in the suit of the State v. Edward W. Gilbert et al. William H. Birilcgrave refused to receive the transfer or receipt for the fees due him until the note was delivered to him. As the Agent of the parish, acting under the said ordinance of the Police Jury, I considered it my duty to deliver the said note to Einhgrave and -Caldwell — to transfer the mortgage and take their receipt for the fees due to them. It became also necessary to deliver the note in order to complete the transaction with R. J. Caldwell and procure his receipt. I never had the note in any other capacity than as agent of the Police Jury of Ouachita. The note was made payable to the parish of Ouachita or bearer.” Answer 5th : “ I transferred said note to the persons mentioned, on the Tth of February, 1854. T transferred the whole note to both of them, stating that each owned two thousand dollars in it. I refer to my answer to the fourth interrogatory for fuller explanation. Wherefore as defendant had no property of defendants in his possession at the date of the service, and has none now, he jjrays to be hence dismissed at plaintiffs’ costs.”

      McGuire & Ray, for plaintiffs and appellants.

      JLudeling, for defendants.
   .‘Spoitokd, J.

There appears-to bemo error .in the judgment discharging the ¡garnishee J. T. Ludeling.

Hi-s ¡answers were not traversed, and they are neither evasive nor inconsistent.

Theiwte which, by the ordinance of the Police Jury, he, as the President, was .authorized to transfer to the District Attorney and the Sheriff in payment of their fees, did not belong to the Sheriff Birilcgrame until he had agreed to take it in payment. If the note itself had been seized at any time before it actually went into his hands, it could not under the evidence have been held as the property of Birilcgrame.

It would also seem that the debt which the parish owed Dinkgraxe for fees in his office of Sheriff, was not subject to seizure under execution. C. C.1987, C. P. 647 ; Conrey v. Copland, 4 An., 307.

Judgment affirmed with costs.


author: Spoeford, J.

text:
    W. J. Scott, Attorney, &c., v. J. Lawson, Curator.
    Ifc cannot be urged in the Supreme Court that the Judge erroneously overruled an application for continuance, when the point had not been reserved by a bill of exceptions to the ruling of the
    Curators, administrators, tutors and testamentary executors who absent themselves from the State for a time, will lose their administrations unless tbey appoint an attorney and deposit an authentic copy of the power of attorney in the manner pointed out by the Act of 24th April, 18 4T,
    C. 0. 1145.
    from the District Court of Bienville, Drew J.

      Scott, for attorney of absent heirs.

      Looney, for the curator and appellant.
   Spoeford, J.

The plaintiff, as counsel for the absent heirs of John M. Bell, deceased, brought this suit to procure the dismissal of the defendant from the office of curator of Bell’s vacant succession.

The reasons alleged are, that the curator, who was a resident of the parish of Bienville at the time'of his appointment, has since left the State and gone to California to reside, where he has been more than a year without leaving any agent or attorney in fact to represent him in the said- succession,, and. that he has also failed to render the proper accounts of his curatorship.

A curator ad hoe was appointed to represent the absent defendant,, and has. appealed from the judgment of the District Court dismissing the curator from, office.

In this court, he urges that the Judge erroneously overruled his application, for a continuance. But he took no bill of exceptions to the ruling, and we cannot, therefore, revise it. It is only when the question decided is presented by-the pleadings, that a bill of exceptions may be dispensed with. Exchange and Banking Co. v. Yorke, 4 An., 139.

The long continued absence of the defendant, probably in the State of California, was sufficiently proved, without the evidence which was excepted to, by-the defendant’s counsel.

It was the duty of the defendant to show that he had complied with the requirements of the Act of 24th April, 1847, amendatory of Art, 1145 of the-Civil Code, even if his absence was but temporary. “ Curators, administrators,, tutors and testamentary executors who only wish to be absent for a time, ought not to lose their administration of said successions on that account; provided,, they leave 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 them in all the acts of their administration as curator, administrator,, tutor and testamentary executor, and deposit an authentic copy of the power-of attorney before his departure, in the office of the Recorder of Mortgages in and for the parish where said succession has been opened, which power of attorney shall be duly registered.”

The object of this law is to secure the constant presence of a person to represent the succession, to whom creditors and heirs may apply. The curator ad hoc might have procured evidence enough to defend this suit by application to the Recorder, if his client had complied with the law.

There is no error in the judgment destituting the defendant of his office as curator. O. C. 1144, 1145, 1149, 1151.

Judgment affirmed with costs.


author: Mekeick, O. J.

text:
    L. C. Henderson v. D. B. Trousdale, et al.
    The neglect of the Clerk to file the appeal bond, which he has certified as a part of the record in the case, cannot be imputed to the appellant, and affords no grounds for the dismissal of the appeal.
    Under the common law, as it prevails in Georgia, the husband by the fact of marriage becomes entitled to the slaves and other personal property of his wife, although he may not have reduced the slaves to his exclusive possession. And where the spouses afterwards remove to Louisiana, the value of the property thus acquired cannot be made the basis of an action by the wife against the husband. It is otherwise with respect to sums of money received by the husband from the sale of his wife’s real estate, and with respect also to dioses in action not reduced to possession by the husband, but collected after the removal of the spouses to this State.
    Where there is nothing to show fraud and collusion on the part of the husband and wife, in an action for the separation of properly, an error in the amount for which the judgment has ' been rendered, should not avoid its effects upon after-acquired property.
    The tenor of the petition and a prayer for general reliei may justify a decree for separation of property without an express prayer to that effect.
    from the District Court of Union, B. W. Bichardson, J.

      BaJcer, for plaintiff.

      Me Quire & Bay, for defendant and appellant.
   Mekeick, O. J.

The motion to dismiss the appeal in this case is overruled. The neglect of the Clerk to file the appeal bond which he has certified as a part of the record in this suit cannot be imputed to the appellants, and therefore cannot prejudice them.

This action is brought to enjoin the Sheriff of the parish of Union from selling a negress and certain town lots in the town of Earmerville.

It seems that the plaintiff was married to Isaiah P. Henderson, in the State of Georgia, sometime in the month of February, 1840. At the time of the marriage she was a minor in the possession of an interest in lands and slaves inherited by her from her deceased father. It does not clearly appear whether or not the slaves had been divided among the heirs at the time of the marriage. As the maiden name of the plaintiff is used in the proces verbal of the partition, signed Pith February, 1840, we infer that it was made prior to the marriage. Two slaves, Tom and Henrietta, and a small sum of money were set apart to her in this partition. In the year 1842 her husband left the State of Georgia for Louisiana, and his wife came out the year succeeding.

The evidence, though not very clear, leaves it probable that the slave Tom remained in the partial possession of Mrs. Bryan, the mother and former guardian of the plaintiff, from the marriage until sometime after the removal of Henderson and wife to the State of Louisiana, when he was sent to them.

It' also appears that plaintiff’s portion of the proceeds of the lands in Georgia and Alabama were sent to them during their residence here. Four hundred dollars, being the proceeds of the land in Georgia, were sent them in 1844, and three hundred and thirty three dollars, the proceeds of those in Alabama, in 1849.

In 1846 Henderson, the husband, sold the slave Tom to one Feazel for six hundred dollars.

In 1849 the plaintiff instituted a suit for separation of property against her husband, claiming judgment for the price of the slave Tom, and $700 in money, received by her husband. A decree of separation of property was rendered in her favor in June, 1849, recognizing her demand against her husband for $1200, and awarding her judgment against him for that sum.

This judgment was, therefore, previous in date to the date of the receipt for $338, her portion of the proceeds of the Alabama land, though the testimony leaves it somewhat uncertain whether this sum had not been received by Henderson, prior to the date of the receipt.

In October, 1849, the property, now in controversy, having been seized at the suit of Garrollton, Frothingham & Go., against Henderson, was sold at Sheriff’s sale to the plaintiff, and adjudicated to her by the Sheriff

The defendants, Paul Tulane & Go., having a judgment against the husband of plaintiff, caused an execution to issue and be levied upon the negress and lots in controversy, as the property of Henderson, disregarding the Sheriff’s sale to the plaintiff and her decree of sepai'ation of property.

She injoined the sale, and in this action she sets up her suit of separation of property and proceedings under it, and her purchase of the property in controversy under the execution levied in the suit of Garrollton, Frothingham & Go. against her husband, as the basis of her title.

The defendants aver that the forms of law in the suit of separation were not complied with; they deny that her husband was indebted to the plaintiff, and allege that the whole matter of plaintiff’s pretended separation and her claim is a fraud, and intended to defraud her husband’s creditors, and that there had been no legal execution of said judgment.

The lower Court rendered a judgment in favor of plaintiff, perpetuating the injunction and quieting the plaintiff in her title and possession, and the defendants appealed.

On the part of the appellants it is contended, that as the marriage was consummated in Georgia, a State in which the common law prevails, the slaves (being there considered personal property) together with all other personal effects of the wife, became the property of the husband by fact of marriage.

The plaintiff, in order to avoid this consequence, alleges, and has attempted to prove, that the slave Tom, as well as the money, was not received by Henderson until after his removal to Louisiana.

It is clearly established that Thomas Bryan, the father of plaintiff, died two or three years previous to her marriage.

Not being aware of any statute of Georgia changing the common law in this respect, we are of the opinion that it was not necessary for the husband t have had the exclusive possession of the slave Tom, in order to make him his property. The act of marriage invested the husband with all the personal effects of the wife, (the ehoses in action excepted,) in full property. We therefore think that the judgment of separation, so far as it embraced the price of the slave Tom, was erroneous. As the husband does not become by the common law the. owner of the real estate of the wife, we think Henderson was chargeable with the sums of money received by him after, his removal to Louisiana, it being the wife’s interest in the lands sold in Georgia and Alabama. Pour hundred dollars of this appears to have been received prior to the judgment of separation, and justified the decree of separation of property, at least for that amount.

Had the money sent been the proceeds of dioses in action, not reduced to possession, but collected after the removal of Henderson and wife to Louisiana, it would have also belonged to the wife, and justified the judgment pro tanto.

There is nothing in the fact that the plaintiff instituted her action for the price of the slave Tom, as well as the proceeds of the sale of the lands in Georgia, which could be considered as characterizing her suit for separation of .property as fraudulent. If she erred, the Judge who decided the case by decreeing her the price of the slave, erred also.

We do not think (where there is nothing to show fraud and collusion on the part of the parties to the action of separation of property,) that an error in the amount for which the judgment has been rendered, should avoid it as to its effects upon after acquired property. We think it should be permitted to stand and produce the effect of dissolving the community, and of leaving the wife separate in property from her husband, and consequently the right to acquire property by purchase. If the creditors have any right to all or any part of the proceeds of the sales made on the execution of the wife on her judgment of separation against her husband, their remedy is in a different proceeding.

We do not think that there is anything in the objection, that, in plaintiff’s petition for a separation of property, there was no express prayer for a dissolution of the community. The tenor of the petition and theprayer for general relief, justified the decree.

Were it necessary to be proved, the proceedings now before us leave us sufficient from which to infer the embarrassed circumstances of the husband at the time of the judgment of separation, but we do not understand that this fact has been put at issue by the answer although urged in argument.

It is therefore ordered, adjudged and decreed by the Oourt that the judgment of the lower Oourt be affirmed, and that the appellants pay the costs of appeal.


author: Spofford, J.

text:
    The State v. G. B. Hopson.
    The order of the court to admit the prisoner to hail, should so be entered of record as to leave no reasonable doubt of its meaning. Therefore, the sureties on the bond of one admitted to bail, on an order which did not designate for whom, or for whose cause it was intended, will not b e bound.
    from the District Oourt of Morehouse, JRidiardson, J.

      Caldwell, District Attorney, for plaintiff.

      McGwwe & Hay, for defendant and appellant.
   Spofford, J.

The grand jury for the parish of Morehouse presented a bill of indictment for perjury against Creen JB. Hopson.

He entered into a bond with several sureties in the-sum of $2,000, for his appearance to answer the charge. The bond appears to have been taken by the Deputy Sheriff.

This bond was forfeited, and the sureties have appealed from the judgment against them.

The sole ground upon which they rely is, that there was no order of court authorizing Green B. Hopson to be admitted to bail.

The only order relied upon by the State, is in the following words :

“ Ordered by the court, that in the following State cases the amount of recognizance or bonds be fixed as follows, and that the Sheriff or his lawful deputy, take their recognizance or bonds, and approve the securities: Peijúry two thousand dollars ($2,000).”

This is not an order to admit Green B. Hopson to bail;

Nor does it follow by necessary intendment from the record, that Hopson's case was the one alluded to in the order.

In these grave matters, requiring the highest judicial discretion to be exercised in each individual case, the record alone is allowed to speak. It cannot be eked out by evidence aliunde, or by conjecture.

In the State v. Longineau, 6 An. 700, the court actually made an order that the prisoner be admitted to bail in a fixed sum.

The Clerk, through inadvertance, did not enter the order on his minutes.

The sureties opposed the forfeiture of Longineau's bond, taken in pursuance of this order, on the ground that there was no order. The State offered to prove by the Clerk, the facts as they were, contradictorily with the sureties..

But the Supreme Court said, that parol evidence could not supply the deficiency in the record, and that the bond was taken without authority and was not binding on the sureties.

The Judge should take into consideration each case by itself, in determining the matter of bail; and his order thereupon should so be entered of record, as to leave no reasonable doubt of its meaning.

The judgment is reversed as to the sureties of Green B. Hopson, and judgment rendered in their favor.


author: SPOFFORD, J

text:
    Same Case on a Re-Hearing.
    In admitting a prisoner to bail, the proper practice is for the Judge to fix the arnouht of a bond, and deputise a person to receive and approve, in each case, as it is presented by the grand jury.
   SPOFFORD, J

In refusing the re-hearing prayed for in this case, we remark that the decision is based solely on the ground that the record does not disclose an order authorizing Hopson to be admitted to bail, either expressly, or by necessary implication.

A general order might be so drawn as to include special cases of necessity; at the same time, we take occasion to express our disapprobation of a practice which seems to imply that the grade of the crime is the sole measure of the amount of the bond to be required to admit the party to bail; whereas the object of requiring bail is to secure the attendance of the party, and the amount of the bond should vary, not only with the degree of the offence, but with the circumstances of the accused.

The proper practice is for the Judge to fix the amount of a bond and deputize a person to receive and approve it, in each case, as it is presented by the grand jury.

Re-hearing refused.


text:
    McAlpin, Receiver, &c. v. Jones et al.
    A receiver appointed by the courts of another State, may, through the instrumentality of our courts, reclaim property which has been fraudulently or feloniously removed from, the jurisdiction of such State.
    from the District Court of Monroe, R. W. Richardson, J.

      McAlpin & Baker, for plaintiff and appellant.

      McGuire & Ray, for defendants.
   Spoeford, J.

The plaintiff, alleging himself to be receiver of all the effects, real and personal, of the estate of Horace Carpenter & Go., in Mississippi, by appointment of the Chancery Court of that State, sued the defendants in the parish of Ouachita, for four negroes, which he averred wore illegally in their possession, and had been stolen from his possession as receiver, in Washington county, Mississippi, they being the property of the estate of Horace Oa/rpen-ter & Go.

Some of the negroes were sequestered and bonded by the defendants.

The defendant, Burwell H. Jones, excepted to the suit, on the ground that there was no such office as receiver to an estate or firm in Mississippi; that the plaintiff' was not such a receiver, and that a foreign receiver cannot stand in judgment in this State, and particularly as the plaintiff’s petition sets out his capacity.

The exceptions were sustained, and the plaintiff appealed from the judgment dismissing this suit.

The statutes of Mississippi in evidence, recognize the office of receiver in chancery to be appointed by the chancellor.

A certified copy of the order of the Superior Court of Chancery in Mississippi, shows that the plaintiff was appointed receiver of the projierty of H. Garpcnler & Go., with authority to take possession and manage the same, and also to carry on the plantation belonging to that estate.

That part of the Clerk’s certificate which was objected to by the defendant’s counsel, may be rejected as surplusage, without impairing the evidence of the plaintiff’s appointment.

-, His right'to bring this suit must be tested by the allegations of his petition, ''in" considering the. exceptions.

Under those, allegations, the right appears to us indisputable.

Property under jthe control of the courts of our sister States, when feloniously or fraudiilentlyu-emoved from their jurisdiction, and brought within ours, ■mpst, on proof of;’ the facts, be instantly remitted by the order of our courts; and the person "who, under the law of the foreign forum, is the custodian of the property,, is the proper person to sue for it here.

See Johnson v. Amboden, 4 An. 178. Myers v. Myers, 8 An. 369. Windgate v. Wheat, 6 An. 241. Faradine v. Farm, and Mech. Bank, 5 An. 711. Planters' Bank v. Bass, 2 An. 436. McGrew v. Browdee, 2 N. S. 17.

It does not appear whether the District Judge ever passed upon the exception to the mode of citation, filed on behalf of Louisa Jones, and therefore we do not pass upon it. But we yemark, that if the citation should be found defective, it would not go to the dismissal of the action, but a new citation would be ordered.

It is therefore ordered, that the judgment of the District Court be reversed, the exceptions overruled, and the cause remanded for further proceedings ; the defendants to pay the costs of this appeal.


author: Spoffokd, J.

text:
    J. & S. Martin v. M. G. Jennings.
    Where plaintiff makes out a clear case of inability to sue by reason of some act or hindrance interposed by the debtor, a plea of prescription set up by the debtor will not be sustained.
    from the District Court of Caldwell, Barry, J.

      McGuire & Bay, for plaintiffs.
    Garrett, Hough & Crawford, for defendant and appellant.
   Spoffokd, J.

This case turns upon the plea of prescription; for, admitting the deposition offered on behalf of the defendant which was rejected below, the plea of compensation is not satisfactorily established.

A little more than five years had elapsed from the maturity of the note sued on, when the defendant was cited in the parish of Caldwell.

But the plaintiffs alleged in their petition that since the note was executed the maker absconded from his residence in Tennessee, where the debt was contracted, for the purpose of eluding his creditors and particularly the plaintiffs,, and that they had but recently discovered his new domicil.

These allegations are fully borne out by the evidence of several' witnesses^, and, although put on his guard by the averments of the petition, the defendant has made no effort to disprove them. He has not chosen to disclose how long he has been in the parish of Caldwell, or where he spent the interval between., his clandestine removal from Tennessee and his arrival in that.parish.

This seems to be a proper case for the application of the equitable rule, “ contra non mlentem agere non currit proscriptAo." The objection that this-', rule is not to be found in the statute books, does not impair its authority,, for it is interwoven with our jurisprudence from the earliest times. It is impossible* to compress every principle of law into a code. Le legislateur n’a pas entendu.; rapetisser la mission du jurisconsulto á un horizon si borné. 2 Troplongr de la¡ Prescription, No. 701.

The departure of the debtor to a foreign country does i of the power of his creditors to sue, and is not the only 1 object can be effected. It is true a clear case of inability some act or hindrance interposed by the debtor should creditor can invoke the maxim in question; the present pli District Judge who presided over the Court of the defends this point, and, under the evidence, we see no reason to See McMasters v. Mathew, 4 An. 418; Blossman v. Mathew, 5 An. 335

The judgment is affirmed, with costs..


text:
    E. Hill & Co. v. W. Tippett and Wife.
    Where the plaintiff brings his action against both husband and wife, and they appear and defend it, the authorization of the husband to his wife to take an appeal by motion will be inferred.
    The statement of facts contemplated by articles 602 and 60S of the Code of Practice, must be made before the appeal is granted.
    The wife is not bound for a proportion of the marriage charges under Articles 2366,2409 of the Civil Code, unless she has reserved to herself the management of her paraphernal property, or unless there has been judgment of separation of property between herself andhusband.
    PPEAL from the District Court of Claiborne, Drew, J.
    -UL Thomasson, for plaintiffs.

      McGuire & Rwy, for defendant and appellant.
   Buchanan, J.

In this case, judgment was rendered in the District Court in favor of plaintiffs against both defendants.

Mrs. Tippett alone has appealed. There is a motion to dismiss the appeal on the grounds:

1st. That Mrs. Tippett has not .been authorized by her husband to take the appeal.

2d. That the statement of facts appended to the record was made at a term of Court subsequent to the granting of the appeal.

Upon the first point, we are of opinion that the defendantshaving been both joined in this suit by plaintiffs and appellees, and having both appeared and defended the same, the authorization of the husband to his wife to take the appeal (which was by motion), must be inferred. Chiasson v. Duplantier, 10 L. R. 574.

The second ground of the motion is well taken, and the statement of facts must be disregarded, not having been made before the appeal was granted. C. P. 002, 603.

The appellant has, however, filed an assignment of errors appearing on the face’ of the record, within the delay accorded by Article 897. O. P. Upon this she has a right to be heard before this Court. The error assigned is, that the allegations of the petition did not warrant a judgment against this appellant.

The petition declares upon two notes signed by the defendant, William Tip-pett, and an account to the debit of the same. It avers: “ That said debts were all contracted in the State of Arkansas by defendants; that said William Tip-pett is the husband of the said Julias Amanda, and, as such, managed her business while in the State of Arkansas; that he is insolvent and irresponsible, having no property of his own that can be made liable for his debts ; that the said Julia Amanda, his wife, has two negroes and other property which she claims as her separate property; that the consideration of the notes sued on, as well as the items of the account, is for family supplies, provisions, merchandize, &c., and that she, the said Julia Amanda Tippett, is liable for the same. Petitioners further aver, that said defendants have not acquired a residence in this State, not having resided here twelve months.”

This petition was filed January 13th, 1853. The notes and account sued on, were due and payable the 1st January, 1852, more than a year before the institution of the suit. From the averments of the petition, it appears then, that the contracts originated and matured in the State of Arkansas, all the parties being residents of said State. Now, the counsel of plaintiffs argues that Mrs. Tippett is liable for these debts contracted by her husband, under the peculiar provisions of the law of Louisiana, as contained in Articles 2866 and 2409 of the Civil Code. But it is contended that the obligations of the parties ought to be construed in reference to the law of Arkansas, which is understood to be the common law of England, except when altered by statute. We deem it unnecessary to go into an investigation of the subject of the wife’s liabilities for the contracts of her husband at the common law; because we do not think a case is presented by the pleadings, of liability on her part, even under the provisions of the Louisiana Code, relied upon by plaintiffs. Eor, neither is it alleged, that Mrs. Tippett has reserved to herself the management of her par-aphernal property, (C. C. 2366,) but directly the contrary; nor that there has been a judgment of separation of property between the defendants.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that there be judgment in favor of the defendant and appellant, Mrs. Julia Amanda Tippett, and against plaintiffs, as in case of nonsuit, with costs in both courts.


author: Spoitobd, J.

text:
    Matilda, f. w. c., v. Autrey, et ux.
    Prescription is not a good defense to an action forfreedom.
    Death bed declarations, of one, at whose death a statu liber obtains her freedom, made in the presence of a defendant who, when sued by the statu Ubei’ /or freedom, pleads prescription, are admissible, as going to showthe origin and natureof possession upon which the plea is based, and also to show the bad faith of the defendant.
    O. 0. 8457, 8480, 8499.
    APPEAL from the District Court of the parish of Monroe, R. W. Richardson, J.

      S. B. Rsseek, for plaintiff.

      McGuire & Ray, for defendant and appellant.
   Spoitobd, J.

The plaintiff alleges that she is a free woman of color, illegally held in servitude by the defendants.

They answer by a general denial and an averment that the plaintiff is really a slave belonging to them, and “ without exhibiting further title ” plead the prescription of fifteen years’ possession as owners.

The sole issue then is libera nel non. This is not an attempt to procure the manumission of a person acknowledged to be still a slave, and the laws of Louisiana regulating that subject are, therefore, foreign to the case.

The plea of usucaption, or the prescription by which property is acquired, cannot avail the defendants.

In Delphine v. Devizé, 2 N. S. 650, it was held that prescription was not a good defence to a claim for freedom. It is true that the decision appears to have been bottomed upon the following text of the Third Partida (Tit. 29, law. 24): “ If a man be free, no matter how long he may be held by another as a slave, his state or condition cannot thereby be changed ; nor can he be reduced to slavery in any manner whatever, on account of the time he may have been held in servitude.”

It is true also that the Spanish laws were repealed by the 25th Section of the Act of 25th March, 1828. Handy v. Parkison, 10 L. R, 99.

But the text above cited is enunciative of a principle of law, which may exist without positive legislation.

The same principle is also deducible from the text of our Civil Code.

“A possession by violence, not being legal, does not confer the right of prescribing. That right only commences when the violence has ceased.” C. 0. 3457.

The relation of master and slave while it subsists in fact, implies power on one side and subjection on the other. It is, besides, proved in this case, that violence was employed by the defendants to keep the plaintiff quiet in her apparent condition.

If the defendants should urge that their possession had a lawful and peaceable commencement by reason of the dying request of the former mistress of plaintiff, that they would take charge of her until she was eighteen years of age, and then take her back to Kentucky to be free, they are met by Article 3480 of the Code, which declares that “ one cannot prescribe against his own title, in this sense, that he cannot change by his own act, the nature and origin of his possession.”

Under the evidence, the defendants cannot have possessed as owners, unless they possessed by violence ; and, in either case, they have not acquired a title sufficient to silence the plaintiff’s claim to freedom, by the prescription of fifteen years.

On the merits, we concur with the District Judge, in the opinion, that the plaintiff was dejure free, when she was brought into this State by defendants, as a slave.

She belonged originally to Biahm'd, Baker of Kentucky. By his last will, admitted to probate in that State, in 1826, he bequeathed her to his wife, Elizabeth Baker, for her natural life, and at her death, “to be free to all intents and purposes as if she were free born.”

No attempt was made'by the defendants to show that there was anything illegal in this bequest, under the laws of Kentucky. On the other hand, the decision quoted from the judicial reports of that State, would seem to indicate that the disposition was valid.

Shortly after the death of her husband, Mrs. Baker removed from Kentucky to Alabama, with Matilda, who was then a statu, libera, by the effect of the will probated in the former -State. The plaintiff went to Alabama with a vested right to her freedom upon the death of Mrs. Baker, who had only a life- ‘ estate in her.

We have no reason to dotíbt the proposition that the courts of Alabama would have recognised the vested rights of the plaintiff. No prohibitory statutes of that State have been offered in evidence derogating from the power <of a master to manumit his slave., or restricting the rights of a statu liber introduced from another State.

The conduct of the defendants in hurrying away the plaintiff from Alabama immediately after she became free by the death of Mrs. Baker, in 1835, and detaining her for so many years in Louisiana, in violation of the trust imposed upon them by Mrs. Balter, who told them to carry her back to Kentucky to be free, indicates a desire on the part of the defendants to avoid the tribunals of those States.

Considering that the defendants pretend to no title whatever but a possession based upon a suspicious commencement and continued under suspicious circumstances, we think the burden was on them to show that there existed some legal obstacle to the recognition of the plaintiff’s freedom. This they have failed to do.

The declarations of Mrs. Baker, made on^ her death bed in the presence of Autrey, were admissible, as they went to show the origin and nature of the possession upon which the plea of prescription is based, and also to show the bad faith of the defendants.

We do not perceive that the will certified by the clerk of the Hopkins County Court in Kentucky, was a copy of a copy. The record excepted to was, w© think, admissible.

There was error in allowing the plaintiff the sum of $1000, for services as claimed in the petition.

The only judgment proper to be rendered upon this branch of the case, was one, not for damages, but for “ wages,” and, under the pleadings and evidence the prescription of one year, seems to apply to this money demand. C. C. 8499. This would reduce the sum to $100.

It is, therefore, ordered, that the judgment of the District Court be so amended as to reduce the sum therein awarded to the plaintiff for her services to the defendants, from one thousand dollars to one hundred dollars, and that thus amended, the said judgment be affirmed, the costs of the appeal tobe paid by the plaintiff and appellee.


author: Rost, J.

text:
    R. King v. B. Ballard.
    Plaintiff sued the defendant for slander. Defendant reconvened for damages resulting from plaintiff^ slander of defendant. Plaintiff excepted to the reconventional demand. The exception was sustained because more than a year had elapsed between the filing of the reconventional demand, and the implied slander which formed the basis of it. Seld: also, that if the slanderous words complained of by defendant had not been prescribed, yet as they had no necessary connexion with plaintiff’s demand, they could not be made the basis of a reconventional demand.
    In an action for slander the Supreme Court, considering both plaintiff and defendant to be in fault, reduced the amount of damages which the jury had found for the plaintiff.
    from the District Court of Caldwell, Barry, J.

      Me Quire & Bay, aud Roug7i, for plaintiff.

      Ogden & Leovy and Oleott, for defendant and appellant.
   Rost, J.

This is an action of slander. It was tried before a jury, who found for the plaintiff $14,000 damages, and the defendant has appealed from the judgment rendered on the verdict.

The parties to this suit are both men of character and intelligence, living on their estates in the vicinity of each other, and having, as country gentlemen usually have, a great deal of spare time upon their hands. They were once intimate friends, and delighted in doing each other friendly offices, but their kindly relations have long since ceased and we are pained to say that they have been too much disposed during the last few years to annoy and harrass each other. Viewing each others acts through the distorted medium of hatred, too prone to assign to those acts the worst motives, and loud in their mutual denunciations, in all places and at all times, they have for years disturbed the peace of the country, unsettled the moral instincts of the people, and become objects of censure, where their lives had previously been examples of the practice of the Christian virtues upon which the laws which protect all, and society itself, rest for their support.

A brief notice of the origin and progress of this deadly feud, as it is disclosed by the record, is material to a proper understanding of the case.

The plaintiff was the Treasurer of the Parish of Caldwell, and had built the Courthouse of that Parish under a contract with the Police Jury. After delivering the building, he claimed extra compensation, which the defendant warmly opposed. From that time the defendant seems to have set himself up as the champion of the tax payers, and the redresser of parochial wrongs, probably not inflicted. He accused the plaintiff publicly of misdemeanors in his office of Treasurer, severely criticised the building he had erected for the Parish, and was heard to say in relation to that building that King had swindled the Parish. He was successful in preventing the plaintiff’s re-election as Parish Treasurer. Shortly after these occurrences, the Supreme Court of the United States decided against the validity of the Maison Rouge Grant, within the limit of which the defendant’s plantation is situated. There is every reason to believe that the plaintiff advised his overseer Fife, and one John Heed, to do the thing of all most offensive to a planter, to go and settle near the back line of the defendant, so that the pre-emption to which their settlements would entitle them, might include part of his lands. He went with them to show them the line, and Meed accordingly built a cabin and made a settlement.

In the succession of John Bres, there was a worthless stock of wild horses, which the neighbors were in the habit of shooting when they came among their gentle stock. The plaintiff acting as an appraiser in the inventory of the succession, appraised those horses at $5 per head, and subsequently purchased them at that price. After this purchase some of those horses found their way to the pasture grounds of the defendant by accident or otherwise, carried away his gentle stock to the swamp with them and caused him infinite trouble and great loss of time.

The plaintiff would occasionally send for them, but they invariably returned. The defendant sent a man to buy them for the purpose of sending them out of the neighborhood, but the plaintiff refused to sell. The defendant after repeated notices to him, that he would shoot that stock unless it was removed, caused them to be appraised by neighbors and had one of them shot, for which he immediately offered to pay. The plaintiff instead of receiving payment, instituted a criminal prosecution against him on his affidavit, that the mare shot by the defendant had been shot maliciously.

Pending this prosecution, which justly terminated in a verdict of acquittal, the defendant wrote and caused to be printed and circulated the letter to the plaintiff which has given rise to this litigation.

The petition alleges that this publication contains the following false, scandalous and libelous charges against the plaintiff:

1st. That he devised a plan to have the defendant murdered by Reed and Fife, when he told them that the defendant had said he intended to shoot them for making a settlement back of his plantation.

2d. That he committed perjury in the affidavit in which he swore that the defendant had shot his mare maliciously.

3d. That he was guilty of improper conductas Parish Treasurer, and connived with the commissioners of the Parish to defraud the Parish in the building of the Courthouse.

4th. That he was guilty of larceny by putting his brand on horses which did not belong to him, and by taking possession of a dead man’s horse without title.

The plaintiff claims $25,000 damages.

The answer denies all the allegations in the petition not expressly admitted. It contains an averment that the several allegations against the plaintiff made in the publication complained of, are true as therein stated; and that the defendant is prepared to prove the truth thereof, but he denies that he has charged the plaintiff with larceny or with a combination with the commissioners to defraud the Parish, or with corrupt motives for his remisness as Parish Treasurer.

The defendant further avers that so far from having caused the plaintiff any damage by propagating false and slanderous charges against him, he himself has been greatly damaged by the various false, defamatory and slanderous charges made against him by the plaintiff, and that the publication complained of, was necessary to his personal safety, and to counteract those charges. He then reiterates the charges of which he complains and claims $25,000 damages in reconvention.

The plaintiff excepted to the claim in recónvention; the exception was sustained, and the claim dismissed. The defendant insists that there is error in this ruling of the Oourt, and that his demand in reconvention should have been entertained. The District Judge has not stated the reasons upon which he dismissed it, but there is an obvious one, upon which the decision must be sustained. The publication complained of, bears date of the 4th September, 1849, and the answer of the defendant was not filed till the 2d of November, 1850, more than a year having elapsed between the two dates. The defendant could no longer have brought an action for injurious words spoken or written by the plaintiff at or before the date of the publication, and cannot therefore assume the character of a plaintiff in reconvention, for any injurious words spoken or written at or before that time. Civil Code, 3501. If on the other hand, the injurious words complained of, have been spoken or written since the publication, they have no necessary connexion with the plaintiff’s demand, and cannot form the basis of a claim in reconvention.

On the merits we have already stated that the verdict of the jury was for the plaintiff. In a case so peculiarly within their province, in which so many witnesses known to them have been examined, and such a wide range given to the defendant to make out his defence, nothing short of manifest error would justify us in setting aside the verdict, so far at least as it settles the facts of the case. This is a rule from which we have never deviated in cases of fraud and slander.

Our examination of the testimony so far from convincing us that there is manifest error in the verdict, has brought our minds to the conclusion that it is in strict conformity with the evidence.

Many of the facts stated in the publication are shown to have been literally true, but with the exception of the criminal prosecution for shooting the mare, they have all been satisfactorily explained. The inferences, therefore, which the defendant intended should be drawn from them, and for which the publication seems to have been made, had nothing to rest upon, and the jury properly inferred malice. The defendant himself admitted in argument that when he propounded to the plaintiff the questions contained in the publication, in relation to the horses of Lm'che and of the Ditchers, which had been branded with his brand, and also in relation to McLain’s horse, he did not believe that the plaintiff had knowingly and intentionally branded and taken possession of those horses with a criminal or dishonest intention. This is a clear admission that the charges which those questions imply were false, and therefore malicious.

Without examining the evidence in detail, we deem it sufficient to say, that we are all fully satisfied with the verdict so far as it settles the fact of malice against the defendant, but we are of opinion that considering all the facts of the case, the damages allowed are excessive. Whatever may be the rule of the common law on the subject of damages in actions of slander, we consider it settled that under the textual provision of Article 1928 of the Code, the discretion given to the jury in actions of that kind is never unlimited, and that although their ¿verdict should not be disturbed on slight grounds, there are limits beyond which the law makes it our duty to interfere. See McGary v. City of Lafayette, 4 Ann. 440.

Under the peculiar circumstances of this case we do not think that the failure of the defendant to prove the charges alleged in the answer to be true, is an obstacle to the reduction of the damages. The power to reduce them in all cases is clearly given, and we think this a proper case for its exercise. Although we do not deem it necessary to enlarge upon all the circumstances which have brought us to this conclusion, we think proper to mention two of them particularly: The manner in which the prosecution of Ballard, for shooting the mare was pressed by the plaintiff; and the assault and battery commit; ted by the plaintiff, after the publication of the libel, upon the person of the defendant, a man, his inferior in bodily strength and much advanced in years. This was to some extent taking the law into his own hands.

Both parties are in fault. The plaintiff suffered his evil passions to get the better of his judgement, when he had the defendant indicted. The defendant subjected himself to the same reproach in making the publication complained of. We consider it however a matter of justice to both parties to say, that on the one hand the evidence is insufficient to establish perjury on the part of King, and that on the other hand, there were circumstances known to Ballard, but unknown to King, which may have created a reasonable suspicion in Ballard's mind, that King had sworn beyond what he knew to be the truth.

Although authorized to curtail the judgment we are not at liberty in such a case as this, to reduce the damages to what would be a bare compensation for the probable injury sustained. After the finding of the jury we feel bound to allow such a sum, as in the exercise of a sound discretion they might have allowed. Had the verdict been for as much as $5,000 we would not have interfered with the judgment, and we will now render it for that sum.

It is ordered that the judgment in this case be reversed; .it is further ordered that there be judgment in favor of the plaintiff and against the defendant for five thousand dollars. It is further ordered that the costs of the District Court be paid by the defendent and those of this appeal by the plaintiff and appellee.

       This judgment waa rendered in 1852.


author: Merrick, C. J.

text:
    Same Case on a Re-hearing.
   Merrick, C. J.

We concur with the late Judges of the Supreme Court in the conclusion to which they arrived, in regard' to the reconventional demand, but not in all the reasons which led them to that .conclusion. We think that the lower Court did not err in striking out the reconventional demand, because the grievances complained of by the defendant were not necessarily connected with the plaintiffs demand. They existed, if it all, prior to the publication of the letter, the basis of plaintiff’s action. The defendant’s cause of action, if he had any, had arisen prior to that time, and the publication of the letter could hardly have affected it, so as to increase or diminish the amount of damages to which he was entitled. These grievances might have been an inducement to the defendant to make his publication. But they were not necessarily connected with it, for he might have omitted it altogether or published one conceived in less offensive terms.

We think the doctrine, that in actions of tort, a wrongful act occurring at another time and place from that setup in plaintiff’s petition, cannot bo pleaded in reconvention, is too well settled to be disturbed by us. In this case the defendant has had the benefit of the proof on the alleged grievances set up in his answer, by way of justification and in mitigation of damages. In this action he could claim nothing more. Keene v. Relf, 11 L. R. 309.

This case has been tried by a jury of the vicinage, who have rendered a verdict against the defendant. The Judge of the lower Court refused to disturb that verdict. Our predecessors who had the benefit of an oral argument on the merits, in the exercise of a discretion with which we do not feel justified to interfere, saw fit to reduce the judgment of the lower Court to the sum of five thousand dollars. After a careful and patient examination of the motion for a rehearing, the record and the able and voluminous brief of counsel, this Court is unanimously of the opinion that the motion for a re-hearing ought to be refused.

It is therefore ordered that said motion be overruled, and a re-hearing refused.


author: Spoffoed, J.

text:
    Hogge v. M. E. H. Taliaferro, Executor.

      Locwson contracted to furnish, the parish of Bossier with a court-house. Brown built the courthouse under a contract with Lcmson, and plaintiff was a mechanic working under Brown. Held: That until the builcling was received by the parish, Lcmson should be considered in the light of a proprietor and hound, attested accounts having been seasonably served upon him, to reserve, out. of the funds coming to Brown enough to pay the plaintiff’s claim.
    from the District Court of Bossier, Brew, J.

      Jones, for plaintiff.

      Looney, for defendant and appellant..
   Spoffoed, J.

The single question in this case is, was And/rew Lawson mad'e» liable to pay the plaintiff’s claim for work done upon the court-house of the parish of Bossier, the plaintiff having complied with the requisitions of the Act of March 18th, 1844, to secure his recourse against Mr. Lawson as owner?-

It is admitted by the defendant, that the house was built by W. W. Brown, under a contract made by him with Mr. Lcmson, and that plaintiff was a mecha--nic working under Brown.

As to Brown then, Lawson was the proprietor. Brown, as undertaker, was responsible to Lawson, and to Lawson alone, and to, hipi. he. looked for his. re-»-muneration.

Lawson was not an architect. He entered into a contract to furnish the parish of Bossier with a court-house, as a speculation. He was to be paid no fixed price in money, but agreed to take a transfer for a limited time, of some of the parochial sources of revenue, consisting principally of the public ferries. Until the building was received by the parish, he might, without doing violence to the language of the Act of 1844, or of Art. 2744 of the Code, be considered the proprietor; he was so within the evident spirit of those laws. And so he must have deemed himself, for the defendant has proved that he paid the plaintiff, who was Brown's foreman, some money while the work was going on.

The plaintiff does not contend for any privilege. Having served attested accounts on the defendant seasonably, he now brings a money demand against him, contending that he should have reserved and has reserved out of the funds coming to Brown as his undertaker, enough to pay the plaintiff as a mechanic employed by Brown to do work for the benefit of Larnson. Although it is charged in the answer that Brown has been fully paid, no evidence was offered to show that fact, and the equity of the plaintiff’s olaim is manifest.

We do not think the judgment of the court below should be disturbed under ■these circumstances. It is, therefore, affirmed with costs.


author: VooaniES, J.

text:
    J. R. Knott v. R. M. Gough.
    Parol evidence is admissible to prove the publication of a notice to sell school lands.
    from the District Court of Union, JR. W. Richm'dson, J.

      Garrett & Ludeling, for plaintiff:
    The testimony and the pleadings show that the defendant was a mere tress-passer ; to recover against him, therefore, it was unnecessary that the plaintiff should have exhibited a title perfect in all respects; one apparently good was sufficient. Bailio v. Burney, 3 R., 317; Fanehonette v. Grange, 5 R., 510 ; Bonis v. James, 7 R., 149 ; ¡Stephenson v. Goff, 10 R., 99.

      McGuire & Bay, for defendant;
    The authority to sell land must be in writing: C. C. 2966; Bradford v. Oook, 4 An., 231; Freret v. Meux, 9 R., 416; Anderson v. Smith, 4 An., 526 ; Patterson v. Bloss, 4 L. R., 377; Allison v. Fox, 5 L. R., 460; C. 0. 2255, 2416. A party claiming under a Sheriff’s sale, must produce the judgment under which execution issued: Thompson v. Ohcmveau, 6 N. S., 462 ; Thompson v. Rogers, 4 L. R., 12. In sales for taxes, the Assessment Roll stands in lieu of a judgment; Hancarnore v. Weathersbee, 6 N. S., 348 ; Smith v. Cor-coran, 7 L. R., 50 ; Hughey v. Bairow, 4 An., 252. The Collector’s Deed furnishes no evidence of his authority to sell: Beeves v. Towls, 10 L. R., 283.
    The statute requires a particular process to sell school lands. Acts of 1847, p. 178, s. 4 — “ vote to be taken and return to be made to State Superintendent.’ ’ At p. 179, s. 5 — “sold under the instructions of the State Superintendent by the Parish Superintendent.” The Acts of 1834, p. 122, s. 1, say — “It shall be the duty of such Parish Judges, Sheriffs, Auctioneers, or other public officers, in their proces-verbal, deed, or act of sale, to state the manner, time and place of making such advertisements; which statement, so required to be made, shall be held to make proof of manner, time and place, &c.” The 3d sec., p. 123, declares such officers liable in damages for neglecting to make such advertisements.
    In this deed from the Parish Superintendent, p. 14 to 17, there is no statement of manner, time, or place of advertising. We suppose a^ sweeping clause was intended to cover it in these words : “proceeded after complying with all the requirements of the law, authorizing the sale of School lands.” The law required him to state the manner, time and place, and he must do so to enable the court to decide whether it was legally done: Delony v. Smith, 3, L. R., 422. It is not stated in the deed that the sale was advertised — there is no proof it was. There is an advertisement given in evidence and copied at p. 17; but there is no evidence it was ever put up in a public place, or where it came from. There was no evidence offered to show that the vote was ever returned to the State Superintendent, as required by Acts of 1847, p. 178, s. 4.
   VooaniES, J.

This is an action to recover both rent and damages. The plaintiff alleges that he is the owner of the north east quarter of section sixteen township twenty-one of range one east, one hundred acres of which is cultivated by the defendant, who has forcibly taken and kept said land in his possession and made a good crop on the same for the year 1851. He claims for rent $250, and for damages also $250. ■ The defendant avers that he has been in possession of the land in question uninterruptedly as owner during the term of four years to the month of December, 1851, since which time he has ceased to possess the same; that he improved, cleared, fenced and cultivated about seventy acres of said land.

The only title exhibited by the plaintiff is a conveyance executed in his favor on the 7th of April, 1851, by Henry Begenburg, as Parish Superintendent of the Public Schools of the parish of Union, under the provisions of the legislative Acts of 1847 and 1848. The price given, as stated in the deed, is $613 60. The defendant produced no title, but relied on the insufficiency of that of the plaintiff. It is contended by his counsel that this conveyance in the absence of proof of the return of the election to the State Superintendent and of the advertisement of the sale, is insufficient to vest a legal title to the property in the plaintiff. The testimony of the Parish Superintendent proves that the election was conducted in the usual manner of conducting elections, and the sale advertised for more than thirty days, and the land was sold in separate quarters, as recommended by the voters. The advertisement, dated 2d March, 1851, shows that the sixteenth section in township 21, range one, east; was advertised to be sold at public auction at the defendant’s residence, on the first Saturday of the following month, the terms announced being “ one-fifth cash, the balance in four equal annual instalments, payable in the State Treasurer’s office, bearing six per cent, interest from the date of the sale, and with mortgage on the land.”

Parol evidence was clearly admissible to prove the publication of this notice or advertisement. It appears to us, the requirements of the statutes have been substantially observed in effecting this sale. There is no analogy between this and a Sheriff’s or collector’s sale. The latter is based on a judgment and execution, or the tax-roll, which has the effect of a judgment and execution; but the former is based upon the statute itself, authorizing the sale of this land.

The defendant was apprised of the sale and intimated his intention to purchase. His conscience being probed by his adversary, he answered that he had cleared, fenced, and had in cultivation about seventy or seventy-five acres, before the plaintiff setup any claim to the quarter section, and in 1851, made on it a crop of corn, potatoes and peas. The evidence shows, that the defendant, though requested shortly after the sale, refused to give the plaintiff possession of the land. The precise time the defendant remained in possession is not shown ; but, we infer from his judicial admission, that he had ceased to do so since the month of December, 1851; it must have been at least six months. All the witnesses concur in estimating the rent of such property at the rate of from $1 60 to $2 per acre. Allowing the average of this estimate as the measure of damages to which we think the plaintiff is entitled, it makes the sum of $68.

The evidence offered by the plaintiff to prove the value of professional services rendered in the suit, as part of the damages sustained by him, was properly ruled out by our learned brother of the District Court.

It is therefore ordered and decreed, that the judgment of the District Court be amended, so as to reduce the plaintiff’s demand to the sum of sixty-three dollars, with legal interest from' the 10th day of November, 1852, until paid, with costs of the District Court; the costs of this appeal to be paid by the plaintiff and appellee.


author: Buchanan, J.

text:
    D. Dinkgrave v. Norwood, Sheriff, et al.
    The seizing'OTeditors cannot contest the reality of a judgment right, acquired before the existence of their own claims.
    PPBAL from the District Court of Ouachita, Richardson, J.

      I\. Ludeling, for plaintiff and appellant.

      McGuire & Ray, for defendant.
   Buchanan, J.

The plaintiff, a married woman, enjoins seizures made under executions of three several judgments against her husband, on the ground that the effects seized are her separate property. She gives in evidence a judgment of separation of property between herself and her husband, rendered in May, 1848, and recognizing her as his creditor for a large sum; also, sales of property in execution of said judgment. She also gives in evidence a partition of the estate of her father in 1842, among his heirs, showing what property she inherited. The District Judge has gone into an elaborate examination of the facts, in his reasons for judgment, and has stated them, as we think, correctly. He concludes by perpetuating the injunction, as to a portion of the property seized, and dissolving it as to the remainder, being three lots of ground in the village of Monroe, with the improvements, which were acquired by plaintiff at a Sheriff’s sale, in execution of her judgment against her husband in October, 1848. The District Judge rejects plaintiff’s claim to this property, because, according to the computation which he has made, of the amount of property proved in this case to have come into her husband’s hands, he is of opinion, that the full amount ®f plaintiff’s legal claims against her husband, had been satisfied out of a previous sale of property in execution of the same judgment, although the nominal amount of said judgment was not so satisfied. A point has been made in argument in this court, which we think merits attention. The three creditors of plaintiff’s husband, whose executions are enjoined herein, only date their claims, so far as the evidence informs us, from May, 1849, (as to one of them,) and from December, 1860 (as to the two others) ; while the judgment of plaintiff against her husband, was rendered in May, 1848.

The seizing creditors cannot contest the validity of a judgment right acquired before the existence of their own claim. Landry v. Marchais, 6 An. 89. Duclaud v. Rousseau, 2 An. 174.

It is therefore adjudged and decreed, that the injunction issued in these consolidated cases he perpetuated; and that the appellees, Fullson & Co., Marshall & James, and Dv/ribar & Co., pay costs in both courts.


text:
    J. P. Elam, Tutor, et al. v. The Heirs of Barr.
    Suit cannot be brought against the securities on a tutor’s bond, until the necessary steps have been taken to enforce payment against the principal.
    PPEAL from the District Court of Catahoula, Barry, J.

      lx. Mayo, for plaintiffs and appellants.

      Taliaferro, for defendants.
   Spofford, J.

The heirs of L. W. Flam, instituted this suit of attachment against certain non-resident heirs of A. & Bcwr, who was one of the sureties of Samuel Glenn, deceased, upon his bond as tutor of the plaintiffs.

Certain funds coming to the defendants as heirs of A. S. Barr, were attached, but the attachment was dissolved and the suit dismissed upon exceptions taken in limine litis by the defendants’ counsel.

It is a sufficient reason for affirming the judgment, that at the time of the filing of the exceptions, the plaintiffs had procured no settlement of their account against their tutor contradictorily with him, or with those who represented him after his decease. Section 6th of the Act of March 16th, 1842 (Sess. Acts, p. 802), provides: “ That the Courts of Probate shall have exclusive cognizance of all suits or actions against sureties on the bonds of appeal, and all others which they are bound by law to receive or exact from appellants and administrators, tutors, curators, and testamentary executors generally; and no such suit shall be instituted against the security until the necessary steps have been taken to enforce payment against the principal.”

The first step towards this result would have been the liquidation of their claim against the principal. Having neglected to take that step, or to to show any valid excuse for their failure to do so, their demand against the heirs of the surety was premature, and was properly dismissed upon the exceptions filed.

Judgment affirmed, with costs.