author: IIowe, J.

text:
    No. 3730.
    Paul Levyson & Co. v. M. C. Ward et al.
    In an action to set asido a sale of a lot of cattle, on the ground that it was fraudulent, tho vendor being in insolvent circumstances at tho time, evidence to show the insolvency of the vendor is inadmissible against tho purchaser unless it bo alleged that tho purchaser was aware of the insolvency at the timo of the sale.
    from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      J. Gr. While, for plaintiffs and appellants. JI. 8. Losee, for defendant and appellee.
   IIowe, J.

The plaintiffs sue the defendant, Ward, on his promissory note; they also sue to set aside the sale of one hundred and seventy-five head of cattle, three horses and one wagon, made by Ward to the defendant, Cullen, on the ground that said sale was a constructive fraud, Ward being in insolvent circumstances, and tho sale being for tho purpose of giving Cullen a preference over other creditors. The court gave judgment against Ward for the sum claimed by the plaintiffs, but refused to set aside the sale. Tho pdaintiffs appeal.

It was not alleged that the purchaser, Cullen, knew .that his vendor, Ward, was in insolvent circumstances, or had not sufficient property to pay his debts, when ho bought tho property from him. The counsel for Cullen, therefore, properly objected to the evidence to show the fact, and his bill of exceptions was well taken to its admission by the court. It is shown that Ward brought the drove of cattle, with the horses and wagon, from Texas to Alexandria for sale, and that the contract he made with Cullen was in tho usual course of his business. It seems to ns, therefore, that this sale is protected by art. 1986 Revised Code, regardless of Ward’s embarrassed circumstances. 16 An. 402; 4 R. 438; 21 An. 667.

Let the judgment appealed from be affirmed with costs.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 3714.
    B. Thornhill et al. v. Picard & Weil.
    A commission merchant wlio has mado advances to a planter, under an agreement that the latter is to ship liis entire crop to tho merchant, and the planter ships a portion of hi» cotton to another merchant, then and in that case the merchant who made the advance» may recover from the planter the usual commissions which he would he entitled to charge on the part of the crop shipped to other parties.
    from the Seventh Judicial District Court, parish of West Feliciana. Miller, J.

      Farrar & Montgomery, for plaintiffs and appellants. Collins & Leake, for defendants and appellees.
   Wyly, J.

The plaintiffs, as the legal representatives of tho late commercial firm of Thornhill & Nixon, sue the defendants for the balance of an account and also for commissions on two hundred and ninety-two bales of cotton which it is alleged they agreed to ship to said firm but afterward failed to do so. The defendants admitted the balance of account and alleged legal tender thereof, but denied any agreement to pay commissions on cotton not shipped.

The court gave judgment for plaintiffs for the amount of the balance of tho account, but rejected their claim for the commissions. The plaintiffs appeal.

On the fifth day of July, 1869, the defendants wrote to Thornhill & Nixon: “Are you willing to let us draw on you, when needed, the the amount of $3000 without charging us the two and a half per cent, for advancing. If so, we shall ship our cotton to you, as promised by our Mr. Weil to your Mr.'Nixon.. We are furnishing to the amount of throe hundred and fifty bales at least, besides the cotton we may buy during the season. ”«*■*** *

This proposition was accepted by Thornhill & Nixon, as appears by the evidence, especially the defendants’ letter to them dated eleventh July, .1869, to wit: Your dispatch and favor, eighth instant are both received, wherein we are informed that yon accept our proposition. In addition to our business, we shall use our influence toward getting other parties to ship-you some cotton. ” * * K 5 ■*

It appears that tho defendants failed to perform their part of the agreement; that they oniy shipped to Thornhill & Nixon fifty-eight bales; that they shipped one hundred bales to Lehman, Newgass & Co.; and no cause is shown for failing to perform their engagement.

In order to obtain the advance of $3000 on tho terms stated, the defendants expressly agreed to shij) Thornhill & Nixon all their ■cotton; this implied, of course, the agreement that they should have .the usual commission of two and a half per cent, for selling tho same; otherwise there would be no motive for the said firm to make the advance. We therefore think the plaintiffs should recover the commissions claimed on tho one hundred bales shipped to Lehman, Newgass & Co., which amounts to $242 50, estimating the value of the cotton at $97 per bale, the average price of fifty-eight bales delivered under the contract. 2 An. 624; 5 An. 505, 548.

It is therefore ordered that the judgment appealed from be increased by adding- to the amount thereof the further sum of two hundred and forty-two dollars and fifty cents, and that the defendants pay costs of both courts.


author: IIowell, J.

text:
    No. 3787.
    Mary and Matilda Bynum v. Smith Gordon, Executor of of G. M. Long—Consolidated Association of Planters of Louisiana, Intervenors.
    A judgment wbicli is not signed by tho judge a quo can not bo made the basis of a plea of presoription. Tho rendering of judgment for tho amount due and on terms to meet the other installments not yet duo, does not merge the unmatured installments in the judgment, and, therefore, such a •judgment can not bo made tho basis of prescription, to commence from its date.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn J.

      W. A. Seay, JR. J. JBoioman and If. By an, for plaintiffs. A. W. Ogden, for defendant. T. O. Manning, for intervenors and appellants.
   IIowell, J.

In this proceeding the district court rendered a judgment in favor of the intervenors for the sums claimed, with a first mortgage ou twelve hundred and seventy-three arpents of land, and in favor of the plaintiffs for a part of their claim, with second mortgage on the above land and a first mortgage on two smaller tracts. From the judgment in favor of the intervenors the plaintiffs have appealed. The ground of their complaint is, that the district court refused to sustain their plea of prescription against the judgment of Intervenors rendered in 1851.

A certified copy of this judgment is in tho record, unsigned, and can not therefore, well he taken as a basis for the prescription interposed ; but considering it a final judgment, it can not be a barrier to -the intervenors’ demand in this action because not revived; for it only passed definitely on so much of their claim as was then due, and directed the sale of the mortgaged property to pay the amount decreed to be due, and on terms to meet subsequent installments as they became due. And it is shown and admitted that the installments then due, in May, 1831, and all the installments down to 1858 inclusive, and a part of the one due in 1859, Lave been paid. The demand in this proceeding is for the installments due from the last date to 1865 inclusive, being the balance of an original stock loan made in 1842 by the intervenors to the plaintiffs’ mother, long- prior to the origin of their claim. Each installment thereof and of the contribution obligations, originating in 1848, claimed also herein, became exigible as it fell duo and not before, and the recognition, in the judgment of 1851, of these series of installments falling due in the future, did not and could not merge them in the said judgment, and the question of its prescription does not arise. As well might it be said that a judgment on one of a series of mortgage notes held by one party, with an order to sell the property for cash to pay it, and on terms to meet the others in the hands of other and unknown parties, would merge tile latter in the judgment by prescription or otherwise, and preclude the holders thereof from suing on them when they become due. According to plaintiffs’ theory a part of the intervenors’ claims would bo prescribed before it becomes due. Such an application of the law of prescription is not admissible. ,

But admit that the judgment of May, 1851, condemning the defendant therein to pay the sum decreed to be due, and ordering the property to be sold, is prescribed, it does not affect the intervenors’ right to enforce the payment of the sums which have fallen due since 1858. The allegations of their petitions hero do not make that judgment the basis of their action.

We find no error in the judgment to the prejudice of the plaintiffs in this respect. It is unnecessary to examine the other questions presented in argument.

Judgment affirmed.


author: Howe, J.

text:
    No. 3731.
    State of Louisiana v. Charles Scott.
    A witness in a criminal trial, wlio lias first been examined in chief, consigned and cross-examined, may be again recalled and re-examined, by the party who first introduced him, upon points touching which, he had not before testified.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      8. Belden, Attorney Q-eneral, for the State. J. G. White, for the accused.
   Howe, J.

It appears, by a bill of exceptions, that upon the trial of the prisoner the State produced and examined a witness whom the defendant then cross-examined. The case for the State having been, closed, the defendant desired to call the same witness for the defense, but tiio State objected and tlie judge a quo sustained tlie objection.. We think the judge erred.

In tlie case of Duncan, 8 Rob. 563, it was said : It is understood to be now the universal practice of the courts of this State in both civil and criminal proceedings to permit a witness, after having been examined in chief, consigned and cross-examined, to be again examined by the party introducing him upon points touching which he had nob before testified; and subsequently to be recalled aud interrogated in relation to facts material to the issue which had not been previously elicited either from inadvertence or ignorauce that they were within the knowledge of the witness.”

The statement by the judge a quo in tlie bill of exceptions that the witness had already been “cross-examined by the attorney for the prisoner until the patience of the court was exhausted,” and that the court said to the witness ‘ have you told all you lcuow about this case*?’ and the witness said 1 yes,’” can hardly suffice to take the cause out of the operation of this just rule. The time of a court cau never be better employed than in hearing testimony for the defense in a criminal case; and the statement of the witness that she knew nothing moro about the case could certainly bo of no weight. Many facts which slie may have deemed irrelevant might have proved to be very important.

It is therefore ordered that the judgment appealed from be reversed, the verdict set aside and tlie cause remanded for a new trial.


author: Ludelino, C. J.

text:
    No. 3710.
    Succession of Thomas J. Wells.
    An executor or administrator is bound by bis oath of oflico, to defend the rights of tlio succession bo administers, and when suits are brought in the courts where the succession is administered, ho may omi>loy counsel to aid liim, who must be paid by the succession.
    An attorney’s fees for services rendered the succession is a debt against the estate, whioh must be paid by preference over tlio creditors of the deceased.
    In estimating the value of services rendered by attorneys to an estate while under administration, tlio court will not be governed entirely by tlio evidence given on tlio trial of the oppositions thereto, but it will fix such an amount as ajipears from the nature of the services rendered reasonable and just.
    Appeal from the Parish Court, parish of Rapides. II. L. Daigre, ' Parish Judge.

      M. liyan, T. O. Manning and James G. White, for executor and attorneys, appellants. D. Worth Gullom and Wm. Seay, for opponent aud appellee.
   Ludelino, C. J.

This is an appeal from a judgment of the parish court of the parish of Rapides, on opposition to a tableau of distribution, filed by- the executor of Thomas J. AVells.

The items opposed are the executor’s commissions and the attorneys’ foes.

The amount of the commissions charged by the executor is such as the law allows; and, as a debt due by the succession, it is entitled to be paid by preference over the debts of the deceased.

In regard to the fees of M. Ryan and Manning and White, the evidence proves that the said attorneys were employed by the executor to attend to the mortuary proceedings of the succession, and to protect the rights of the succession in various litigated and important suits. Although the evidence in the record would justify us in allowing the full amount charged by them, yet, under the settled jurisprudence of ’ this State, we do not feel constrained to adhere to the estimates of witnesses as to the amounts which should be allowed as fees; and we will fix the fees as appears to us, from the natp.ro of the services, reasonable and just.

The fees of E. C. Billings and Labatt and Preston; placed upon the tablean, wero opposed, and no evidence was offered to show that they wore due.

The opponents contend that the fees of the attorneys and commissions of the executor are not privileged claims, and that the attorneys’' fees are not debts chargeable to the succession, inasmuch as their services did not inure to the benefit of all the parties in interest, and that their services did not inure to the benefit of opponent, in particular, with whom most of the litigation was carried on.

It is the duty of executors and administrators to assert and defend the rights of the successions they administer; and to do so in the - courts, they must employ the services of lawyers, for which the successions should pay. All interested in the successions may be said to be benefited by such legal services, inasmuch as there could be no settlement of a succession until all contests relative to debts claimed against the successions, or to the rights of the successions to property,, had been determined. Other creditors than the opponent were interested in the succession; and as the succession will not be able to pay all the debts against it, it would have benefited them to defeat the opponent’s claim. There is nothing in the record to show that the executor abused the right vested in him to employ counsel to defend the rights of the succession. '

The fees of attorneys for services of this nature and commissions of administrators and .executors ave debts of the succession, and they are of a higher dignity than the debts of the deceased and they must he paid by preference. 10 La. 440; 3 An. 396; 18 An. 721.

It is therefore ordered and adjudged that the judgment of the lower court be amended as follows: by allowing five hundred dollars to M. Ryan, and two thousand dollars to Manning and White, with preference over the debts of the deceased, other than privileged claims, and by maintaining the opposition to the claims of E. C. Billings and Labatt and Preston. It is further ordered, that as thus amended, the judgment of the lower court be affirmed and that appellee pay costs of this appeal.


author: Howell, J.

text:
    No. 3669.
    M. Egana, J. N. Lea and E. Dupasseur — Mrs. A. Bringier, subrogated, v. M. S. Bringier — Mr. and Mrs. Tureaud, Garnishees. (Consolidated cases).
    Tlio seizuvo of goods or effects in iho hands of tho garnislioo is doomed to "bo made by the. sheriff at tho dato of the service of tho intorrogatories upon him. Tho return l>y tho ■sheriff of tho fieri facias -without returning a copy thereof, before tlio garnishee has answered the interrogatorios, is not therefore an abandonment of tho seizure made by tho plaintiff in execution. In such a caso tho garnislioo must answer tho interrogatories tho saino as if tlio writ of fieri facias or a copy thereof was st-illin tho hands of tho sheriff.
    Appeal from the Fourth Judicial District Court, parish of Ascension. Beauvais, J.

      A. Trudeau and Legendre & Boche, for appellees. l'rist & Oliver, for garnishees, appellants.
   Howell, J.

The only question in this case is whether or not the return by the sheriff of the fieri facias without retaining a copy thereof, after service .of garnishment process on garnishees, but before they had answered, is an abandonment of tho seizure by the plaintiff in ■execution, so as to relieve tlio garnishees from answering. The question must be answered in the negative. Article 246 C. P. directs that upon issuing u fieri facias a third person may be cited to answer interrogatories touching his indebtedness to or having in Ms possession any property of tho defendant, and lie is bound to answer in tho same manner and bo held liable in tho same manner for his neglect or refusal to answer, and Ills answers majr be disproved in the same manner ns those of garnishees; and the seizure shall be deemed to be as by the ¡sheriff from the date of the service of the interrogatories on such person.

It is necessary for the writ of fieri facias to lie in tho sheriff’s hands at tiie time of the service of the petition and interrogatories, but we .are not aware of any provision of the law which makes the duty and liability of the garnishee in such a case or tho force of tho seizure •depend on the retention of tho writ of fieri facias by the sheriff. Even iu the case of seizure of property iu the ordinary execution of adjudgment, tiie return of tho writ without retaining a copy does not release the seizure or impair the privilege, unless tho plaintiff or tho court •order the return. See It. S. § 3416.

.The seizure by garnishment proceedings can not be put in any harder condition, even if it be conceded that this provision of the law does not apply to the latter mode of proceeding. Tho judge a quo did not err in overruling the exception of the garnishees to answer, ¡and ordering them to pay.

We do not think this a caso for damages for delay; and besides appellee has asked an amendment of the judgment in her favor, and •she can not at the same time ho heard to ask for damages.

Judgment affirmed.

Rehearing refused.


text:
    No. 2474.
    Bussey & Co. v. Mississippi Valley Transportation Company.
    A towboat used in lowing barges or other water craft, which are loaded with freight, from one point to another on the river, is a common carrier, and the persons owning such towboat, who undertake to tow a hurgo, loaded with freight or merchandise irom one given point to another on the ^Mississippi river, first giving a bill of lading for the transportation oí* tho cargo on board of the bargo, are liable for tho delivery of tho cargo at the port of destination tho same as if it had been placed on board tho towboat herself.
    Tho value of goods shipped on board of a bargo at St. Louis, to bo towed to Lrew Orleans by a towboat, may therefore bo recovorod from tho company owning tho towboat in caso of loss whiio on tho trip, resulting from tho negligence, carelessness or want of skill in the . persons managing tlio towboat.
    from the Fourth District Court, parish of Orleans. Théard, J.

      Gibson & Austin, for plaintiffs and appellees. M. <£ IT. Marr,. ior defendants and appellants.
   Howe, J.

The plaintiffs, a commercial firm, sned the defendants, a corporation, whose business is io transport merchandise in their own model barges, and to tow tho barges of other partios ior hire between St. Louis and New Orleans.

The bill of ladiug, given by defendants to plaintiffs, recites the receipt from plaintiffs of one barge loaded with hay and corn, “in apparent good order in tow of the good steamboat Bee and barges,”' “ to be delivered without delay in like good order (the dangers of navigation, fire, explosion and collision excepted) to Bussey & Co. at New Orleans, Louisiana, on levee or wharf boat, he or they paying freight at the rate annexed, or $700 for barge, and charges $267 50.” ■■■: -X * “it agreed with shippers,” the bill continues, “that the Bee and barges arc not accountable for sinking or damage to barge, except from gross carelessness.”

It was alleged by plaintiffs that defendants had neglected to deliver the barge and lier valuable cargo according to their contract. Tim defendants answered by a general denial, and by a recital of what they claimed to be the circumstances of the loss of the barge and cargo, in which they contended they were without blame ; and that the-loss did not result from gross carelessness on their part, and they wore-not liable under tho bill of lading. Other defenses were raised by the answer which have been abandoned.

Tlie court a qua gave judgment for plaintiffs for tho amount claimed as tho valuó of the barge and cargo, $15,272 60, with interest from, judicial demand, and defendants appealed.

Tiie appellants contend, ais stated in their printed argument,

“First — That they are not common carriers, or rather that their undertaking in this, or like cases, is not that of a common carrier.
“ Second — That they are liable, if liable at all, only in case of gross-carelessness.
“ Third — That the restriction of liability contained in the agreement to tow the barge in question exonerates them, except in case of gross carelessness — as the appellants were bound to use but ordinary prudence, even if they were common carriers.
il Fourth — That the judgment rendered is for a larger amount than the testimony will authorize.”

The question whether a'towboat under the circumstances of this particular case is a common carrier has been long settled in the affirmative in Louisiana; and the reasoning by which Judge Matthews supported this conclusion in the leading case of Smith v. Pierce, 1 La. 354, is worthy of the sagacity for which that jurist was pre-eminent. The same opinion was clearly intimated by the Supreme Court of Massachusetts in the case of Sproul v. I-Iemmingway, 14 Pickering, p. 1, in which Chief Justice fehaw was the organ of the court.

In the case also of Alexander v. Green, 7 Hill p. 533, file Court of Errors of New York seem to have been of the same opinion. Four of the senators in giving their reasons distinctly state their belief that the towboat in that caso was a common carrier, and Judge Matthews’ decision is referred to in terms of commendation as a precedent. It is true that Mr. Justice Bronson, whoso opinion was thus reversed, iu a •subsequent case declares (2 Comstock, 208) that nobody could tell what the Court of Errors did decide in Alexander u^Greene, but'fee faets remain as above stated, and the effect of the case can not but bo to fortify the authority of the decision in 1 La.

In addition to these authorities we have the'weighty opinion of Mr. Kent who includes “ steam towboats” in his list of common carriers, 2 Kent 599, and of Judge Itane iu 13 Law Reporter 399. On the other band, Judge Story seems to be of a different opinion (Bailments $ 496), a,nd Mr. Justice Grier differed from. Judge Kane.

So, too, the Supreme Court of New York, iu Caton v. Rumney 13 Wendell 387, and Alexander v. Greene, 3 Hill 9 ; the Court of Appeals of the same State in Well v. Steam Nav. Co., 2 Comstock 207; the Supreme Court of Pennsylvania in Leonard v. Hendrickson, 18 State, 40, and Brown v. Clegg, 63 State 51; and the Supreme Court of Maryland in Penn. Co. v. Sandridge, 8 Gill & J.ohnson 248, decided that tugboats in these particular cases were nob common carriers. We are informed that the same decision was made in the case of the Neafie, lately decided, in the United States Circuit Court in Now Orleans.

Such conliict of authority might be very distressing to the student, but for the fact that when those writers and cases cited by them are examined the discrepancy, except in the decision in 63 Penn., is moro iníáginary than real. There are two very different ways in which a •■steam towboat may be employed, and it is likely that Mr. Story was contemplating one method and Mr. Kent the other. In the first place it niay be employed as a mere means of locomotion under the entire control of the towed vessel; or the owner of the towed vessel and goods therein may remain in possession and,control of the property thus transported to the exclusion of the bailee; or the towing tíiay be ■casual merely, and not as a regular business between fixed termini. Such were the facts in some form as stated or assumed in Catón v Rumney, 13 Wénd. and Alexandria v. Greene, 3 Hill, cit;ed by Judge Story in the case of the Neafie, and in the cases §ibove quoted from 2 Com-stock, 18 Penn. State, and 8 Gill & J.ohnson; and it might well be said ■that under such circumstances the towboat or- tug is not a common carrier. But a second and quite different method of employing a towboat is where she plies regularly between fixed termini,-towing- for hire and for all persons, barges laden with goods, and taking into her full possession and control, and out of the control of the bailor the property thus transported. Such is the case at bar. It seems to satisfy every requirement in the definition of a common carrier. Story on Bail § 495. And it was probably to á tówboat employed in this way tliat Mr. Kent referred in the passage quoted above; and that the ■'Supreme Court of Massachusetts had in mind in the‘14- Pickering; and see also Davis v. Ilousen, 6 Rob. 259, and Clapp v. Stanton 20 An. -495. We must thiuk that in all reason the liability of the defendants under such circumstances should be precisely the same as if, the barge being much smaller, it had been carried, cargo and all, on the deck of their tug.

But conceding that this case as a contract of affreightment must be ■determined by the law of Missouri (4 Martifi 584), and that by that law the defendants are not common carriers as to the plaintiffs, we think it clear from the evidence of the defendants’ own witnesses that they were guilty of ‘‘gross carelessness” in their attempt to deliver the plaintiffs’ barge with its carge at the port of New Orleans, and that by this gross carelessness she was sunk, and, with her cargo, destroyed.

What is gross carelessness ?” In an employment requiring skill, it is -the failure to exerciso skill. New World v. King, 16 Howard 475. The employment of tlio defendants certainly required skill. A lack of that dexterity which comes from long experience only, might he swiftly fatal, for but a single plank intervenes between the costly -cargo and instant destruction. Wo have hut to road the testimony of defendants’ own witnesses,' and especially Conley, Turner, Burdeau, and Sylvester, to see that the attempt to land the barge was made •without skill, and that if might easily have been effected with entire safety.

We are of opinion that the judgment was correctly rendered in favor of 'plaintiffs, blit that the amount is somewhat excessive. We find the value of the property lost at this port, less the freight and charges, and" a small amount realized from the wreck to be $13,268 -50.

. It is therefore ordered that the judgment appealed from be amended by reducing the amount thereof to the sum of thirteen thousand two-hundred and sixty-eight dollars and fifty cents with legal interest from judicial demand and costs of the lower court, and that as thus amended it be affirmed, appellees to pay costs of appeal.


author: Tama ferro, J.

text:
    No. 3778.
    E. J. Cockfield v. B. & B. Tourres.
    The fact that a party cast in a suit has brought an action of nullity of judgment will not interfere with his right of appeal from the same judgment. The appeal will not therefore be dismissed on that ground.
    A garnishee who is required to answer interrogatories in, open court on a day fixed, is entitled to personal notice, which must bo given him a reasonable time before the day for answering. A judgment rendered against a garnishee on interrogatories taken pro confesso without notice having been given for a reasonable time to the garnishee, will be set aside on appeal, and the cause will be remanded.
    from the Ninth, Judicial District Court, parish of Natchitoches. Orsborn J.

      Jack & Pierson and Morse & Branguet, for appellants. J, M. B. Tueker, for appellee.
   Tama ferro, J.

The plaintiff obtained judgment against the defendants for $2500 with interest, and against the garnishees, Llorens & Curiy, in solido, for $1171 with interest. From this judgment the garnishees alone appeal.

The plaintiff and appellee moves to dismiss the appeal on the ground that the garnishees have brought in'the proper court an action to-annul the judgment appealed irom; and that the action to annul is still pending. We know of no law which precludes a party from appealing from a judgment rendered against him because he has resorted to another means of defense against that judgment. The motion to dismiss is overruled.

On the merits, the only matter in controversy necessary to consider,. at the present stage of the proceedings, is the question as to the sufficiency of the notice to the garnishees of the order to answer the interrogatories. The garnishees were duly brought into court by citation on the ninth of June, 1871. An order was rendered for them to answer the'interrogatories on the fifteenth of that month, and notices issued which the sheriff returned ; he was unable to serve from the obstruc- - tion of high water which prevented him from reaching the domicile of the parties. Tiie time was extended for answering, and the sheriff again failed from the same cause to serve the notices. Finally, on the sixth of November the time was extended to the fifteenth of that month,' and the sheriff returned that he had served a copy of the - order on A. J. Carry, ono of tile members of the firm of Llorcns & Curry, the two garnishees, on the fourteenth of November, tho service being ma<de at his store twenty-five miles from tlio court house.

It has been, hold that whenever an act is to be done by a party personally which can not be done by his counsel, he is entitled to a special notice of the order and of the particular day on which ho is required to comply -with it, before he can be deemed to be in default. 2 An. 11. . •

The garnishees in this case wore required to answer in open court on the fifteenth of November, and the notice was not served until tlio fourteenth, the distance between their domicile and tho courthouse being-twenty-five miles. This can not, we think, be held a compliance with law. Whenever notice to a party is required and the law fixes no specific time to intervene between service of the notice and the time when the required act is tp be performed, a reasonable time is implied. We think in this instance tho garnishees wore not allowed a reasonable time for answering, and therefore the judgment taken against them pro confesso was premature.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, so far as it affects Lloreus & Curry, cited as gar-, nishees, be annulled, avoided and reversed, reserving- to the plaintiff the right to have legal notice of the order to answer served upon the garnishees.

It is further ordered that this case be remanded to the lower court to be further proceeded with according to law.


text:
    No. 3823.
    Martin, Cobb & Co. v. Temple S. Coons.
    The act of Congress of March 2,1867, -which authorizes the removal of a cause from a State court to tho Circuit Court of the United States under certain circumstances does not chango the law regulating the jurisdiction of tho Federal Court, as to persons. A removal of a cause to the Circuit Court of tho United States cannot therefore be allowed if tho record fails to show that as to persons, the Federal Court can exercise no jurisdiction.
    Aii application for a removal based on the allegations of an intorvenor alono, that ho is not a resident of the State, is not sufficient to authorize the chango, if the record showrs that tho plaintiffs in the action aro residents of the State. Moreover the application will not be granted, if tho intervenor merely avers that he is, at tho timo of the filing of his intervention, a resident of another State. It results then that in such a case tlio intorvenor must allego and show affirmatively that ho and the plaintiffs were both residents of another State than that of tho defendant at tho timo suit was brought. *
    from tho Thirteenth Judicial District Court, parish of Madison. Rough,- J.

      Sparrow <& Montgomery, for plaintiffs. J. O. Reale, for defendant. Rarrar & Reeves, for intervenor.
   Howe, J.

The plaintiffs T. J. Martin, Daniel Cobh, John D. Cobb, and John Dolhondo, alleging- that they composed “ the commercial firm of Martin, Cobb & Co., domiciliated and doing business in the city of New Orleans,” brought suit against the defendant Coons, a resident of Madison parish, Louisiana, to recover the sum of $21,770 49 -on a promissory note.

Various defenses were made, including a demand in reconvention against plaintiffs for the sum of $7823 02, and a further demand for ■the sum of $36,000.

The cause was tried by a jury, who rendered a verdict in favor of defendant as to the claim of the plaintiffs, but rejecting the reconventional demands. The judge a quo thereupon granted a new trial.

Up to this stage of the case it is plain that the controversy was one which belonged to a State court, and of which the Federal tribunals in Louisiana could have no jurisdiction, either by reason of person or subject matter. But T. J. Martin, one of the plaintiffs, desiring to remove the cause to the United States Circuit Court, presented an affidavit in the court a qua, the portions of which necessary to be noticed, are as follows:

'' That your petitioner is the sole owner of the claims or debts upon which this suit is founded; that said firm (of plaintiffs) has been dissolved, and the said demands have been handed over by said firm to your petitioner, who has the exclusive control thereof and the sole ¡right to collect the same.
‘'That your petitioner resided out of the State of Louisiana, to wit, in the State of Kentucky, and ho avers that he has reason to and does believe that from prejudice and local influence in this parish he will not be able to obtain justice in this court, and that he is desirous of removing this suit to the Circuit Court of the United States.” * *

Upon these and the other and formal allegations of the affidavit, the judge a quo made an order of removal, from which the defendants have appealed.

The proceedings bjr mandamus to compel this appeal are reported in State ex rel. Coons v. The Judge, etc., 23 An. 29.

We think the judge a quo erred in granting the order of removal. In the first placo the statute of March 2, 3867, does not make any change in the jurisdiction of the Federal court as to persons. It is still required that the plaintiff should be a citizen of one State and the defendant of another. And it is well settled that this means that ■all the plaintiffs should be citizens of a State different from that of the defendant. Brightley’s Fed. Dig., 125, 326, 127; Smith v. Rives, 2 ..Sumner, 338 ; Wilson v. Blodget, 4 McLean 363 ; Hubbard v. Northern Railroad Co., 25 Vermont, 715.

It is not pretended that all the plaintiffs in this case are citizens of some State other than Louisiana, and it would seem therefore that the plaintiff, Martin, alone, has no right to remove the cause to the United States Circuit Court, even if he himself were properly alleged to be ■a citizen of Kentucky. Hubbard v. Northern Railroad Co., 3 Blatchford’s C. C., 84 ; Beardsley v. Torrey, 4 Wash. C. C. 286 ; in re Turner, 3 Wallace Jr., C. C. —.

But Martin does not allege himself to be a citizen of any State other than Louisiana. He says ho “resided” in Kentucky. Passing over the manifest fact that this allegation is entirely consistent with his having been a citizen of Louisiana when this suit was begun, and ever «ince — for it may merely mean that he resided in Kentucky in the year 1840 — it is inadequate, under the most favorable construction, to remove the cause. An'application for removal must show that the petitioner therefor is a citizen of another State; an averment that he is a resident is not sufficient. Parker v. Overman, 18 Howard 137.

Moreover, it does not even appear by the record or affidavit that the defendant Coons is a citizen of Louisiana. For any thing that appears to the contrary, he may be a citizen of Kentucky.

It might also be a matter of interest to inquire if it were necessary, what is to become of the large reconventional demand of defendant against all the plaintiffs? Is Coons to be deprived of the right to urge this demand against the Cobbs and Dolhonde, because Martin “resided” in Kentucky and distrusts the sense of justice of the people of Madison parish 1

For these reasons, let the order appealed from be reversed and annulled at the costs of appellee.


author: Taliaferro, J.

text:
    No. 3755.
    Mrs. E. R. Jemison v. Mrs. Eleanor E. Barrow.
    "Whore a married woman appears in court as plaintiff without the authorization of her husband, the presumption is that the husband has refused, and the judge may authorize her without it being shown that the husband was absent or refused.
    A third person who discloses no interest in a suit to annul a sale, on the ground that the vendor has not complied with its terms and conditions, can not be permitted to intervene in the suit.
    from the Seventh Judicial District Court, parish of West Feliciana. Miller, J.

      Wicldiffe & Msher, for plaintiff and appellee. Collins & Lealce, for defendant and appellant.
   Taliaferro, J.

The plaintiff sues to annul a contract of sale to her of a tract of land by the defendant alleging that the conditions upon which the purchase was made have not been complied with on the part of the seller. The answer excepts that plaintiff has no cause of action, and if the exception is overruled the defendant pleads the general issue.

An application was made on the part of J. F. Irvine to intervene in the suit. This was objected to on the part of the plaintiff’s counsel for the reason that the intervention came too late, the trial of the case having already begun. That Irvine had no interest in the cause; that he coulcl not stand in judgment in any matter involved in the contro versy; that he was in no manner a party or privy to the original contract in relation to which this suit has arisen. Tlie objections were sustained and the intervention refused. To this ruling the applicant took a bill of exceptions.

There was judgment in favor of the plaintiff annulling the sale, and reinstating her mortgage rights upon the land described in the act annulled as they existed prior to the sale. Prom this judgment the defendant has appealed. Irvine has also.appealed.

The defendant excepts to the right of plaintiff to prosecute this suit, for the reason that on the day of filing the same she obtained the authorization of the judge to bring the action without showing the absence or refusal of her husband to grant the authority.

We think this objection is without weight. The judge may authorize the wife to appear in court if the husband fail or refuse to do it; the wife, who is plaintiff, being authorized in this case by the judge, the presumption is that the husband failed or refused to authorize her.

The facts of this case are, that at the time of the sale from Mrs. Barrow to Mrs. Jemison, the latter had a judicial mortgage affecting tlie property of the former to the extent of $10,000. By the terms of the agreement the land conveyed was taken at the valuation of §6000, for which a credit was to be entered on the judgment. At the time this contract was entered into, there were two other creditors of Mrs. Barrow, Newgass and Mrs. Richardson having judicial mortgages bearing on her property concurrent with Mrs. Jemisoms mortgage. It seems the six hundred and fifty acres sold to Mrs. Jemison makes part of a larger body of land, all of which was subject to the three concurrent judicial mortgages. In the contract between Mrs. Jemison and Mrs. Barrow, it was stipulated that if the other two creditors by judicial mortgage, did not release their mortgage rights quoad the six hundred and fifty acres conveyed to Mrs. Jemison, she was to be sot back to the same ground she occupied before the contract; that is, if the other creditors having mortgages concurrent with her own enforced their mortgages, Mrs. Jemison was to fall back upon her mortgage rights in order to participate in the proceeds of the property when sold, and in that event she was to be compensated for the improvements she might make upon tlie land. Newgass enforced his mortgage, and the land was sold, but no release was made by him or by Mrs. Richardson of their mortgage rights, as to the land purchased by Mrs. Jemison. Irvine, the party who aimed to intervene, was the purchaser of the land, and it is alleged that ho offered to secure to Mrs. Jemison the portion of the land, purchased by her from Mrs. Barrow.

It is insisted by the defendant that it is simply a cáse of warranty, that Mrs. Jemison has not been evicted, and therefore has no cause to complain. The contract of sale depending upon tho will of Newgass and Mrs. Richardson, was dissolved of right as soon as they sought to enforce their mortgages.

We find no error in the judgment. Tho ruling of the court refusing to permit Irvine to intervene was proper; he clearly had no right to intervene.

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

Rehearing refused.


text:
    No. 3736.
    J. J. Wade et al. v. C. C. Percy et al.
    In tlio trial of an injunction suit to avoid the payment of the price of a tract ot land, on tho ground of a stipulation in tho contract that tho vendor was to perfect the title before he could enforce payment of tho price, parol evidence is inadmissible to show the true intent of tho parties in tlie clause authorizing tho purchaser to withhold payment of the price until tho title is perfected. %

    from the Seventh Judicial District Court, parish of West Feliciana. Miller, J.

      WieMiffe ct- Fisher, for plaintiffs and appellees. Gollins & Lealce, for defendants and appellants.
   Taliaferro, J.

Tho defendant Percy, holder of a promissory note, secured by mortgage given by plaintiff, Wade, in part payment of a tract of land he purchased from Percy, took out an order of seizure and sale of the land mortgaged, whereupon Wade injoined the sale on several grounds, among- which is tlie allegation that by tho contract entered into by tho parties the vendee Wade was authorized to withhold payment of the price until tho vendor Percy furnished his vendee’ a full and complete title to the land. The defendant in injunction replies that the stipulation in regard to the furnishing- a full and complete title had reference alone to perfecting it in regard to some right upon the land held by one Wimbish, and which had been released. The judge a quo perpetuated the injunction, and the defendant in injunction has appealed. An effort was made on the part of the defendant to show by parol evidence the true intent and purpose of the parties in the stipulation that the purchaser should withhold payment of the notes until the title was perfected, but the court sustained the objection to tlie evidence, and we think properly.

It is charged in the answer to the injunction suit that Wade well knew that the minors liad a small mortgage upon the property he purchased, and yet in their brief the counsel of defendant say “neither Wade nor Percy had any knowledge of the tacit mortgage when tlie sale was passed, and hence they made no agreement as to this mortgage.” Some stress is placed upon the fact that Wade paid one of the. notes and three hundred and eighty-eight dollars on the second note, and was anxious to have the extension of time to pay the remainder written on the back of the note. The defendant admits that the minors’ mortgage still subsists to the extent of nine hundred and ninety-one dollars and seventy-six cents. The plaintiff does not seem to have been in bad faith. He appears to have found it difficult to meet his payments, and to have been desirous to avoid being sued and to obtain time. But this was no waiver of his right under the contract to require a full and complete title to the land before making payment. This stipulation covered as well the unknown incumbrances on tlie property as those which were known.

We think the judgment of the lower court correct; and it is ordered that it be affirmed with costs in both courts.


author: I-Iowe, J.

text:
    No. 3340
    Gottlieb Neidhardt v. John B. Hunterheimer.
    An action to annul a judgment for want of citation can not 1)0 maintained, if it be shown that the person cited and the person who demands the nullity of the judgment are one and the same person.
    The fact that the defendant has boon cited by a different surname than his own will not avail, if it be shown that some called him by the name under which he was cited.
    from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Wm. Miflwff, for plaintiff and appellant. A.. Gasabat and H. W. Ogden, for defendant and appellant.
   I-Iowe, J.

This is a suit to annul a judgment for want of citation.

The defendant relied upon the exception of res judicata, among other defenses, and this exception was sustained by the lower court. The-plaintiff has appealed.

We see no error in the judgment. The citation was addressed to G. Reinhardt) instead of G. Neidhardt. In an action to enjoin the sale of plaintiff’s property under the judgment rendered on this citation, tiie sole question raised yras whether or not Gottlieb Neidhardt and Gottlieb Reinhardt wore identically the same person. The court decided that the plaintiff’s name was Gottlieb, and that by way of surname some called him Neidhardt and some Reinhardt; and thereupon gave judgment for the defendant. This judgment was not appealed from and seems to have settled the question of identity. But, if Gottlieb Rheinhardt and Gottlieb Neidhardt were merely slightly different names of the same iierson; then the question of the validity of the citation was also finally determined, and became, necessarily, a tiling-adjudged.

Judgment affirmed.

Rehearing refused.


text:
    No. 3533.
    Ines Peyroux v. M. A. Peyroux et als.
    A decree of tlie probate court ordering the sale of succession property, can not bo attacked' collaterally by the licirs, in a proceeding to bo recognized as the owner of the property which has been sold under it, on the ground that the order of sale was irregular and null. In a succession sale of proporty for the purpose of effecting a partition among the heirs, the-appointment of a special tutor to each is unnecessary.
    The appointment of another person than the one first designated to make the sale of succession property for tlm purposes of partition does not render the order of sale or the sale a nullity.
    The purchaser of property at probate sale has nothing to do with the character of the judgment directing the sale of the property, whether such a decree be a judgment of partition is immaterial to the purchaser.
    from the Fifth District Court, parish of Orleans. Leaimoni, J.

      Charles Lougue, for plaintiff and appellant. O. JE. Schmidt, for defendants and appellees.
   Taliaferro, J.

The plaintiff, as one of the heirs of her deceased mother, asks to ho recognized as the owner of the oue-seventh part of a square of ground in the Third District of New Orleans, now in possession of the defendant Jacob Badinger, which she alleges was illegally sold.

On the twenty-seventh of May, 1802, P. O. Peyroux as heir and administrator brought suit for the partition of the property held in common, by him and his minor brothers and sisters, whoso tutor lie was. Experts were appointed to report whether or not the property was susceptible of partition in kind. They reported in the negative. The under-tutor, who was cited to represent the .minors, answered that he could urge no objections to the demand for partition and as the experts had reported that it could not he made in kind, asked for a family meeting to fix the terms of sale. This family meeting advised the sale and fixed the terms. Their deliberations were homologated aud the sale was ordered to ho made accordingly by N. Vignie, auctioneer. Subsequently the administrator asked that his own name be substituted in place of that of the said auctioneer, which was done.. The sale was made by him, and the piece of property in controversy was adjudicated to the defendant, M. A. Peyroux, who sold it to Baringer. The plaintiff prays that those sales bo declared null as to her, on several grounds and from a judgment against her she has appealed.

The plaintiff by admitting that the acts under private signature, offered by defendant, were executed and delivered at the dates thereof and the signatures thereto were genuine, removed the objections made by her to their admissibility. The act of sale under private signature is admitted to have been recorded long before the institution of this-suit.

Article 2234 R. C. C. provides that “all proees verbals of succession property, signed by the sheriff or other person making the same, by the purchaser and two witnesses, arc authentic acts.” The one in this case was so signed. The change made by the court in the person appointed to make the sale does not in this instance affect the authenticity or admissibility of tho prooes verbal. The bills of exceptions are not well taken.

The alleged grounds of the nullity of the sale attacked are :

First — Tho judgment ordering the sale was rendered without trial, without motion or suggestion of the parties. A decree or order of sale was rendered by the probate court, and it •can not in this collateral way be attacked. 2 An. 509; 14 An. 413; 23 An. 500.

Second — The minors wore not properly represented, because a special tutor to each was not appointed. This was unnecessary. Article 275 and not 1369, R. C. C. applies. See the case of Emmcr v. Kelly, 23 An.

Third — Tiie judgment could not be altered after rendition. The alteration referred to was the change in the person appointed to make the sale, which did not produce tho nullity of the order oí sale or the sale.

Fourth — It was not a judgment in partition. With this the purchaser at the auction sale has no concern.

Fifth — -The defendant could not have acquired by just title.

This is corollary from the preceding grounds, and as tiiey are not maintained it must fall.

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

Rehearing- refused.


author: TaliAeer.ro, J.

text:
    No. 3745.
    Furcy Deuchatell v. Charles L. Robinson.
    In a possessory action to recover possession of real estate, the plaintiff rnnst show that he was in the peaceable possession of the property at tho time tho suit was brought, and that he lias been disturbed in his possession by the illegal acts of tho defendant.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.
    12. A. Hunter, for plaintiff and appellant. J. G. White, for defendant and appellee.
   TaliAeer.ro, J.

This is a possessory action. The plaintiff alleges that ho is owner of a tract of land lying in the parish of Rapides, and that the same lias been in the peaceable possession of his ancestors and himself together for a period of thirty years, but that recently he has been disturbed in the possession of it by the defendant, who has ille-gally gone upon the land and detains it from the petitioner. The answer denies both tho plaintiff’s possession and alleged disturbance. Judgment was rendered in favor of the defendant and the plaintiff has appealed.

We think the plaintiff has failed to make good his allegations of possession which is the gist oí the action. A power of attorney from plaintiff to one Bruce is introduced in evidence, the purport of which is, that Bruce is authorized to take charge of the real estate of plaintiff, situated in the parish of Rapides, and to lease the same, collect rents, etc. This act is dated the tenth oí December, 1809. It is not shown that the agent ever had the land in question in possession. On the contrary, the defendant proves by a witness who testifies that he has known the place, the possession of which is in controversy since I860, that neither the plaintiff, his father, nor Bruce, the plaintiff’s agent, has ever resided upon or had possession of the land to the witness’ knowledge. That for throe years immediately preceding the commencement of the defendant’s possession, the land was continuously in possession of other parties authorized by Governor Wells to occupy it. The plaintiff’s evidence, it is clear, does not enable him to maintain a possessory action.

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


text:
    No. 3473.
    Bolivar Edwards, District Attorney, etc., v. John Evans.
    Section nine of tlie Revenue Act of 1871, wliicli gives tlio Governor tlio power to appoint tax collectors in tlie different parishes of the State who are to hold their offices for tlio term of two years, does not vacate the offices of tax collectors, who were appointed under the Revenue Law of 1870 for the term of two years. An appointment of a person as tax collector under the law of 1871, who had previously been appointed to the same office under the law of 1870 and rejected by the Senate, was therefore in conflict with article sixty-one of the Constitution which forbids the appointment of any person to the same office' during the recess of the Senate, who had been rejected by that body.
    Appeal from the Sixth Judicial District Court, parish of Tangipahoa. Ellis, J.

      Bolivar Edwards, District Attorney, for plaintiff and appellee. Emmett B>. Craig, for defendant and appellant.
   IIowe, J.

By the tenth section of the Revenue Act of 1870, 131, it was provided that ior the several parishes of the State, except the parish of Orleans, the Governor should nominate, and by and with the advice and consent of the Senate, appoint one tax collector for the term of two years, which appointment should date from the first Monday of April, 1870, and should he made every two years thereafter.

Under this provision the defendant was appointed tax collector of the parish of Tangipahoa.

At the session of 1871 his name was sent in to the Senate, and the nomination rejected. The nomination was again sent in, hut ior some reason was not acted on.

By the Revenue Act of March 3, 1871, it was provided that for each of the parishes of the State, except the city of New Orleans, the Governor should upon tlio expiration of the term of office of the present incumbents, or in case of vacancy from any cause whatever, nominate,, and, by and with the advice and consent of the Senate, appoint one tax collector, which appointment should date from the first Monday of January, 1871, and should be made every two years thereafter.

Under this provision the defendant on the third of March, 1871, was again appointed tax collector of Tangipahoa.

The only question necessary to consider in this case is whether this last appointment was made in contravention of article sixty-one of the Constitution which declares, that “no person who has been nominated for office, and rejected by the Senate, shall bo appointed to the same office during the recess of the Senate.”

We understand from the argument that the defendant was appointed in March, 1871, upon the hypothesis that the act of 1871 above quoted established practically a new office in which there was an “original, vacancy,” and that his appointment therefore was not in violation of the sixty-first article of the Constitution.

We are constrained to think that the appointment of March, 187'1, was made in error. The act of 1871 did not create a new office of tax collector, nor did it abolish the old one. It merely provided a method of filling vacancies in the office, whether occasioned by expiration of term or otherwise; and fixed a time for which the appointees to such-vacancies should hold. State v. Kroedor, 21 An. 482.

In this view we see no error in the judgment against the defendant.

Judgment affirmed.

Rehearing refused.


text:
    No. 3741.
    James M. Wells v. Simon Siess.
    In this caso tho plaintiff gave to his two sons a certain amount of money, which was placed in tho commercial firm as tho money which they had hound themselves to put into the house, for which a noto of the firm was given. Tho plaintiff now seeks to hold the defendant, a member of tho firm, liable as a commercial partner, in solido, for the note.
    Held — That tho money for which tho note was given being placed in tho firm by the plaintiff' as capital which was to bo paid in by his two sons, payment of the note could not be enforced against tho other member of tho firm, tho defendant in this case, as an obligation in solido.

    from the Seventh Judicial District Court, parish of Avoyelles. Miller, J.

      JH. Worth Oullom, for plaintiff and appellee.. Waddill, Barbin & Taylor, for defendant and appellant.
   IIowe, J.

This is an action on a promissory note executed in the name of Wells Bros. & Co., July 29, 1864, to the order of plaintiff,, the defendant being sued as a member of the commercial firm. There-was judgment for plaintiff, and the defendant appealed.

The firm of Wells Bros. & Co. was composed of Thomas M. Wells,. Leri Wells, and Simon Siess the defendant. By the articles of copartnership of July 29, 1864, the Wells were to furnish $30,000 of capital, the defendant his personal services only.

The plaintiff sketched the articles, and was familiar with the objects and intentions of the partners, two of whom were his sons. The note in suit bears even date with the articles of partnership, and was signed by Levi Wells for the firm. It never appeared on the books of the firm.

Levi Wells, a witness for plaintiff, testifies that he signed it on the day it was dated, when a check for its amount was given by plaintiff and that it (the note) was given for a part of the capital agreed to be furnished to the firm by his brother and himself. The plaintiff himself says : The money loaned by witness to the firm was advanced in order to carry out the obligation of the contract of partnership of July 29, 1864.” The defendant declares that he never heard of the note in suit until he was cited in this action.

The whole evidence forces us to the conclusion that the plaintiff advanced the amount of the note to his two sons to enable them to comply with their agreement to pay in a certain amount of capital to the firm; that though the amount eventually went to the use of the firm it went as a contribution from the two partners, and not directly as a loan from plaintiff, and that the defendant can not be held liable. Parsons on Mercantile Law, p. 179, and cases cited; Smith v. Senecal, 2 Rob. 453.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant with costs in both courts.


text:
      No. 3799.
    Eugene Breaux et al. v. Lauve & McCall.
    An obligation given by a commercial firm to a third party, acknowledging an indebtedness, on account oi‘ land speculations between the parties, conditioned that it is to bo paid out of the proceeds of the lands when sold, is suspensive in its character, and can not bo enforced until iho lands have been sold.
    A suit for partition may, however, bo entertained to divido tho lands in kind, among the* different claimants, and if a judicial sale is necessary to effect a partition, then, and in that case, the suspensive obligation may bo enforced against the proceeds of the sale.
    from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      Parroio & Pope, for plaintiffs and appellees. A. & E. P. Talbott, for defendants and appellants.
   Taliaferro, J.

This is an action by the representatives of Thomas Mille against Jones McCall and the representatives of Omer Lauve, who, with Jones McCall, composed the former copartnership of Lauve •& McCall, for a partition of certain lands owned in common between the commercial firm of Lanve & McCall and Thomas Mille, and also for the payment out of the proceeds of the sale of the property tho -obligation of Lauve & McCall to Mille for the payment of $7552 54, witli eight per cent, interest frpm twenty-third March, 1855. McCall, and a part of the heirs of Lauve resist the claim of tho plaintiffs and against the obligation to pay $7552 54, they plead the prescription of five and ten years. Of tho other defendants, some acquiesce in the prayer for partition, others desire a partition in kind, and some answer by general denial.

Tho judgment of the lower court decreed a partition by sale, and directed the manner of making it, overruled the plea of prescription and ordered payment of the sum claimed to be made out of tho proceeds of sale accruing to McCall and the heirs of Lauve. Prom this judgment McCall has appealed.

It appears that in the year 1854 a written agreement was entered into between Thomas Mille and the firm of Lauve & McQall for the purpose of buying public lands on speculation in equal shares between the partnership and Mille, the funds to make the entries with to be furnished by Millo, and Lauve & McCall were to execute their note for the payment of their half interest in each and every entry, payable proportionally as the lands are sold or disposed of. In March, 1855, Lauve & McCall executed the obligation sued upon in the following -terms:

“New Orleans, March 23, 1855.
“ We, the undersigned, acknowledge to be indebted to Mr. Thomas Millo to the sum of seven thousand seven hundred and fifty-two dollars and fifty-four cents, with interest at the rate of eight per cent, per annum for one-half of his disbursements in our account land speculations made between us and him as per agreement of the first day ■of July, 1854, duplicate of which is deposited in the hands of the interested parties; said sum, interest and expenses to bo reimbursed to said Thomas Mille, proportionally, as the lands entered and purchased .-are sold or otherwise disposed of.
“ (Signed) LAUYE & McCALL.”
Indorsed: “ New Orleans, March 7, 1860.
■“We, tho undersigned and drawers of the within note waive prescription of said note.
“ (Signed) LAUYE & McCALL.”

It is argued on the part of the plaintiffs that the action on the obligation is not prescribed, as the term for its performance has not arrived. The $7752 54 are to be paid proportionally as the land entered and purchased are sold, or otherwise disposed of; and the lands remain unsold, and have not been otherwise disposed of. The recovery ■of the sum specified out of the proceeds of the lands when sold, the plaintiffs contend is incidental to the partition, and the action of partition is not prescribed.

We tliink the case is with the plaintiffs. The obligation is clearly one contracted on, a suspensive condition depending on a future event, which has not yet taken place, viz: the sum expressed is to be paid proportionally as the lands entered and purchased are sold. It is not shown that any of the lands acquired by the parties under their agreement were over sold. Mille, it appears, died in 1856, and the lands have remained in an undivided state ever since.

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


text:
    No. 3725.
    Valery Ledoux v. Jerome J. Ducote.
    The act of tlio General Assembly authorizing tho parish judges to grant orders of seizure and' salo, in the absence of the district judge, is constitutional.
    An order of seizure and sale granted by a parish judge, in tho absence from the parish of tho district judge, on sufficient and authentic evidence is therefore obligatory and binding upon tho parties in interest.
    Appeal from the Seventh Judicial District Court, parish of Avoyelles. J. M. Edwards, Parish Judge.

      Irion & Thorpe, for plaintiff and appellee. Fdwards <& Fueoté, for defendant and ax>pellant.
   Wyly, J.

On seventh June, 1869, the pdaintiff sold to -Francois Bettevy a tract of land in the parish of Avoyelles for $3680, evidenced by the xu’omissory note of the latter payable on first January, 1871 ? secured by sxiecial mortgage on the property.

Subsequently the x>urchaser sold part of tho land to tbe defendant, Jerome J. Dncoté, and as part of tlie price lie assumed to pay $2000-on the note for $3680 held by the original vendor, the x>laintiff, and in order to secure the punctual payment of tlie same the defendant specially mortgaged and hypothecated the property which he purchased.

On tho latter mortgage the plaintiff sued out an order of seizure and sale.

From this the defendant appeals, and contends that the order should, be set aside for tbe following reasons:

First — The order of seizure and sale was not justified by the evidence accompanying the x>etition.

Second — The property really affected by the mortgage is held by Bettevy tlie vendor of the appellant.

Third — That the parish judge could not issue the order of seizure-in the absence of tbe district judge, because tlie law authorizing it is unconstitutional, being violative of article 87 of tbe constitution.

We find that the note and an authenticated copy of the act of mortgage given by Bettevy, and also a certified cox>y of tbe act of mortgage given by tho defendant were attached to the petition. The judge therefore had authentic evidence of the debt of $2000 assumed by the ■defendant, and also of the mortgage which ho had given on the property purchased to secure the payment of the same.

There was sufficient evidence to justify the order.

If the defendant does not own the property proceeded against ho has no right to complain.

As to tlie constitutionality of the act authorizing the parish judge to grant orders of seizure and sale in the absence of the district judge, we will remark that, in our opinion, the statute is constitutional.

Article ,91 of the constitution declares that: “The General Assembly shall have power to vest in the parish judges the right to grant such orders and do such acts as may be deemed necessary for the furtherance of the administration of justice; and in all cases the power thus granted shall bo specified and determined.”

Judgment affirmed.


text:
    No. 3610.
    George Stewart v. Jane Robinson.

      Xf an injunction bas been obtained against tlio enforcement of a judgment and tlie evidence given on tlie trial of a rule to dissolve it shows clearly that the plaintiff bad no grounds for injunction, then damages will be given against tbo plaintiff in injunction, regulated by tlie amount of tlie judgment injoined.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J.

      JB. C. Elliott, for plaintiff and appellant. V. O. King and B. King 'Cutler, for defendant and appellee.
   Taliaferro, J.

This case was before the appellate court in January, 1871, 23 An. 83, upon an injunction taken out by the defendant to stay an order of seizure and sale, issued at the suit of the plaintiff and under which 1he sheriff had seized several town lots in the city of Jefferson, mortgaged to secure the payment of a note for tlie sum of $1276 90, with interest. The judgment of the lower court, dissolving the injunction, was affirmed by this court. After filing the mandate in the court below the plaintiff renewed the seizure, and was again opposed by a second injunction, which forms the basis of the present ■action. There was an intervention filed in the case by a Miss Boyle, which was dismissed.

Tlie grounds stated by defendant for the injunction are:

Eirst — That under a writ of seizure and sale and a writ of fieri facias, issued by plaintiff on the fifteenth of February, 1871, the property of defendant was seized and advertised to bo sold on the eighth of April following; but that the sheriff illegally postponed the sale so advertised to the thirteenth of May, then next ensuing, without the consent of tlie defendant and to her detriment.

Second — That no legal sale of the property could be made under the writ of fi. fa. on the thirteenth of May, because it hail expired, no -return or renewal of tho writ having been made.

Third — -That defendant had no notice to appoint an appraiser, a right which she claims under article six hundred and seventy-one of the Code of Practice.

The defendant in injunction took a rule upon the plaintiff to show ••cause why tho injunctions should not bo dissolved. Upon trial of "the rule, the injunction was dissolved, and from that judgment the •defendant in the suit appealed. Tho grounds sot up by tho defendant for suing out this injunction are not sustained by the evidence in the record. A suspension of tho writ of fieri facias it seems occurred from, the intervention of Miss Boyle, claiming the property as owner, hut it is shown that at the expiration of the writ, about the last of April, it was duly returned, and a duly certified copy obtained from the clerk as required by law, the seizure being preserved. The record shows that the defendant had notice to appear and appoint an appraiser.

The appellee prays that the judgment of the lower court be amended by allowing him twentj^ per cent, damages against the appellant for •an abuse of the remedy of injunction and for vexatious delay in enforcing his claim. The evidence shows that the plaintiff had no grounds for tho injunction.

It is therefore ordered, adjudged and decreed that the judgment of the lower court he amended so as to condemn the plaintiff in injunction, and her sureties on the injunction bond, in solido to pay the plaintiff as damages ten per cent, upon the amount of the judgment, the enforcement of which was injoined, and as thus amended that the ■decree of the court a qua be affirmed with costs.

Rehearing refused.


text:
    No. 3775.
    Ar. Miltenberger v. J. Witherow, Curator.
    The act of Congress of Juno, 1864, which suspended tho proscription of actions in cases where the creditor resided within tho limits of the adhering States and tho debtor resided within the limits of tho insurrectionary States, during the late war, does not apply to cases where the creditor and debtor both resided within tho limits of the insurrectionary States.
    Prescription once acquired in favor of an estate can not bo waived by an acknowledgment of tho claim by the administrator.
    from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Jacob O. Seale, for plaintiff and appellant. J$. T). Farrar, for defendant ’and apjiellee.
   Howell, J.

The plaintiff has appealed from a judgment sustaining the plea of prescription to his action on an account for money furnished to Robt. Ramsey, deceased, to purchase plantation supplies and ■the commissions thereon from ninth August, 1861, to eleventh July, 1882. Ho relies upon the proof that in 1863 the debtor went to Texas whore he diedj that from tho month of March, 1863, to November, 1865, no suit could have been brought in the courts of Madison parish, tho residence of said Ramsey, up to the time of his going to Texas, and that one N. D. Coleman, as administrator, on the eighth November, 1866, wrote upon tho account the approval thereof to bo paid in due course of administration; and he also invokes the act of Congress, eleventh June, 1864, suspending prescription. This act of Congress can not apply, the residence of the parties being in this State, and as the evidence shows, within the Federal linos of occupation during the time. Admitting that N. D. Coloman was legally appointed tho administrator of Ramsey’s succession, the account was prescribed at the time he acknowledged it, according to the established jurisprudence of this State, and ho had no power to waive proscription already acquired in favor of tho succession.

None of tho grounds urged by plaintiff can be accepted as interrupting or suspending tho prescription in this case.

Judgment affirmed.


text:
    No. 3643.
    J. Badeaux v. E. W. Blake.
    If tlio amount involved docs not exceed five hundred dollars, exclusive of interest, the district courts for tho State are without jurisdiction. Constitution, art. 85. A suit for an amount less than fivo hundred dollars was therefore properly dismissed for want of jurisdiction, although the accrued interest when added to the principal exceeded that sum.
    Appeal from the Fifteenth Judicial District Court, parish of Lafourche. Thomas P. Sherburne, Judge ad hoe.

      Isaiah JD. Moore, for plaintiff and appellant. JP. S. & J. 8. Goode, Louis Lush, Louis Guión and A. F. & Olay Knobloeh, for defendant and appellee.
   Howell, J.

The defendant is sued as indorser for the sum of $811 78, it being the amount of a note for $413 37, and accrued interest. He pleaded to the jurisdiction of the court, and plaintiff has appealed from the judgment sustaining tho plea.

Article 85 of the constitution provides that, “ the original jurisdiction of tho district court extends to all civil cases when the amount in dispute exceeds live hundred dollars, cxehusive of interest.”

. The amount in dispute in this suit, exclusive of interest, does not exceed five hundred dollars, and lienee the district court is not vested with jurisdiction. See 22 An. 459. Tho above language of tho constitution is plain and unequivocal. The question before us is not whether the parish court mayor may not have jurisdiction of tho case, but whether tho district court had. It is clear it had not.

Judgment affirmed.

Rehearing refused.


text:
    No. 3841.
    Illat Newell v. H. S. Buckner.
    If two appeals liave been taken from different judgments, rendered at different times between the same parties, and founded upon the samo cause of action, the one devolutive and the other suspensive, and both appeals are presented in one record, tho appeals will not be dismissed on that account, if both appeals are susceptible of being passed upon at the same time.
    A mortgage given by an heir on liis interest in his mother’s estate to secure a debt of his father’s to a third person (unless it is so expressed), is not a relinquishment of his legal mortgage on tho property of his father, for debts duo him by his father as tutor. And in case the father’s property is sold by his creditor, the heir’s preference to tho pro* ceeds of the sale, as a prior and preferred mortgage creditor can not be defeated on the ground of relinquishment of his mortgage rights by going security for Iris father.
    PPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      Farrar & Beeves and W. JB. Spencer, for plaintiff and appellant. Labait <& Aronl, for defendant and appellee.
   IIowell, J.

II. S. Buckner caused a writ of seizure and sale to issue against Thomas M. Nowell and the Shackleford plantation to be seized. Illat Newell injoined the sale of the undivided half thereof, claimed by him, on the ground that having- mortgaged his half as an additional security for tho debt of Thomas M. Newell, his father, he is not personally bound and is entitled to tlie benefit of discussion; he also claimed by way of third opposition in tho same proceeding the proceeds of his father’s half, by preference, by virtue of a judgment against his father as tutor with mortgage superior to that of Buckner, who answered that Illat Nowell has by notarial act relinquished all his claim upon said plantation in favor of the mortgage which ho is enforcing,.and denied tlie valid existence of said Mat’s claim and mortgage against Ms father. Judgment was rendered on twenty-fifth October, 1870, dissolving tho injunction, sustaining the plea of discussion, and ordering the sale of Thomas M. Newell’s half, and if the proceeds thereof are not enough to satisfy Buckner’s claim, then Illat Newell’s half to be sold to pay the balance. No specific reference is made in this decree to Mat’s demand for the proceeds of his father’s half by preference. Prom this judgment Mat Newell took a devolutive appeal on twenty-fifth September, 1871.

In the mean time the property was again advertised, and each half adjudicated to Buckner on first July, 1871. Pending tlie advertisement, Mat Newell filed a sworn petition of third opposition, claiming the proceeds as before. To this the plea of res judicata was opposed and sustained on eighteenth April, 1871. Prom this judgment Mat Newell took a suspensive appeal on twenty-seventh April, 1871.

A motion is made to dismiss the appeal herein, on the ground that it is impossible for this court to pass on the matters involved in this form, there being two distinct actions in which judgments were rendered and appeals granted at different terms of the court, and all blended in one record.

If it be possible for us to pass intelligently on the matters presented by these two appeals, tho motion can not, by its own terms, be sustained. As they have been ably argued both orally and by brief, we will endeavor to dispose of them.

As to the plea of res judicatft presented in the suspensive appeal, taken on twenty-seventh April, 1871, it need only be said that tho proceedings, embracing it, present the questions and rights which upon this branch of the controversy are presented in the devolutive appeal taken from the first judgment between the same parties, and maintaining the plea would not preclude an examination of said questions, which are regularly before us on said devolutive appeal.

Tho only question of any practical importance is tho right of preference and priority asserted by Illat Newell to the proceeds of his father’s half of the plantation sold, and its solution depends on the construction of the act of mortgage executed by said Illat Newell as security for his father’s debt. This act may he considered as a part of, or supplement to the one executed by his father, in which the latter hound himself to procure its execution, and it declares that, “in order to secure the payment of the said sum of nineteen thousand and seventy-eight dollars and fifty-four cents, the amount of the three promissory notes aforesaid, and in order also to secure the payment of all lawyers’ fees not exceeding five per cent, on tho amount for which it may he necessary to institute a suit, he, the said Illat Newell, does by these presents specially mortgage and hypothecate in favor of the said firm of Buckner, Newman & Co., and any and all future holder or holders of said notes or either of them, all and singular, his right, title, interest, share, property, claim and demand of any nature and kind whatsoever of, in and to the property referred to,” etc., describing' the property seized, which had been mortgaged by his father, Thomas M. Newell, as his property. The above act contains the clause that tho mortgageor will not “alienate or encumber tiie interest in said plantation, which he has or may hereafter have, to tho prejudice of this mortgage.”

In the foregoing language or any other part of the said act, we can discover nothing which is equivalent to a relinquishment or renunciation of Ms mortgage rights against or upon his father’s property arising from tho tutorship or otherwise, but simply a mortgage upon what was susceptible of being mortgaged, bis rights in and to the real property, and this was given as additional security to that given by Ms father in the act of mortgage executed by him, and that mortgage operated only upon his father's property, which was then subject to the minor’s mortgage. A renunciation of a right is not to bo presumed.

Nor does the fact that Illat Newell demanded the benefit of discussion imply such renunciation, for in the same petition he asserted his right of mortgage. The record satisfies tis that Illat Newell has not lost his superior right of mortgage upon the half of the land sold, which belonged to his father, and that he is entitled to the proceeds thereof, which are not sufficient to satisfy his claim.

It'is therefore ordered, that the judgment rendered herein on eighteenth April, 1871, and so much of the one rendered on twenty-fifth October, 1870, as disallows or denies the preference and priority asserted by Illat Newell, plaintiff to the proceeds of the half of the land sold herein as belonging to Thomas M. Newell, and condemns plaintiff to pay costs, be reversed, and it is now ordered that the said right of preference and priority be recognized, and that the proceeds of the one-half of the Shackleford plantation,” sold by the sheriff of the parish -of Tensas, on the first July, 1871, as the property of Thomas M. Newell, be paid to the plaintiff, Illat Newell, with costs in both courts.

Rehearing refused.


author: Taeiaberro, J.

text:
    No. 3851.
    Mary E. Brown and Husband v. James A. Ventress, Dative Testamentary Executor.
    A dative testamentary exoeutor will bo removed from office, if it be shown that he lias disobeyed tho orders of the court directing him to lile an account within a given time, or that ho has otherwise neglected or refused to discharge the duties imposed upon him as testamentary executor.
    from the Parish Court of the parish of Iberville. A. Petit, Parish Judge.

      Maiheios <& Wailes, lor plaintiffs and appellees. Barrow & Bope, for defendant and appellant.
   Taeiaberro, J.

This is a suit to remove from office a dative testamentary executor, and for judgment against him for ten per cent, per annum on all sums he may be found liable for in that capacity. The action is brought by one of the heirs of James N. Brown, who died in 1-859, leaving a large estate, the principal part of which is situated in the parish of Iberville. He appointed as executors of his will, John N. Brown, a son, and Hilbert S. Hawkins, a friend of the testator. Both the executors died within three or four years after the opening of the succession, and in December, 1864, the defendant was appointed dative testamentary executor, and he qualified as such by entering into bond and taking the oath required by law. The testator directed that certain real estate he owned in Baton Rouge and New Orleans, should ho sold; that after the payment of his debts and certain legacies, the mass of Ms property consisting chiefly of two large sugar plantations should he kept together until his youngest child became of ago, the plantations to he cultivated, and the net annual reveneus to he equally divided among his heirs. The plantations have been superintended and cultivated by the defendant since ho came into office as dative testamentary executor. No account was filed by tlie executors appointed by the will. On the sixteenth of November, 1869, the plaintiff obtained an order of the probate court of Iberville, directing the defendant to file an account of his administration as dative testamentary executor, which he had failed and neglected to do prior to that time. The order then rendered was tardily obeyed. No account was filed until the fifth of October, 1870. On the twenty-fourth of that month he filed a second account, and on the sixteenth of October, 1871, ho filed a third account. These accounts were promptly and vigorously opposed, and it seems no judgment has been rendered on the oppositions.

This suit to remove the defendant from office was filed on tho third of October, 1870, two days before he filed his first account, and nearly a year after the order was rendered directing an account to be filed.

The grounds upon which the defendant is sought to be removed, are:

First — That he lias been unfaithful in his administration of the estate of James N. Brown.

Second — That he has made use of money and property entrusted to him as dative testamentary oxecutor for his private account.

Third — That ho has neglected and failed to obey tho order of this court commanding him to render a full, fair and perfect account of Ms administration.

Fourth — That tho sureties on his bond as dative testamentary executor are insufficient, and that he has failed to account for the proceeds of the plantations under his charge amounting to $275,000.

A judgment was rendered by the judge a quo, dismissing- from office the defendant, but ho did not feel authorized under the allegations of the petition to impose upon him the penalties prescribed by statute. Prom this judgment the defendant has appealed.

We think tho evidence in the record abundantly justifies the decree of dismissal. Por about five years before he was called upon for an account he had never presented one; and, after an order was rendered for the purpose of compelling him to account, another year elapsed before he,complied, the account then filed being the first during his administr atio n.

Whatever obstacles may have been presented to the executor’s efficient and careful discharge of his duties during the confusion and trouble arising from the war, there was nothing in his way for several years after it ended to prevent him from complying with the law requiring executors to render an account annually. Revised Statutes, sec. 1465.

It is shown that the dative testamentary executor made a surrender of Ills property in March, 1865, claiming the benefit of the insolvent laws, that one of his sureties has since gone into bankruptcy, and that the other owns no property.

Upon the whole, it is clear, from the entire evidence adduced by the plaintiffs in support of their allegations, that sufficient grounds are shown for the removal of the defendant from the office of dative testamentary executor of James N. Brown.

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


author: IIov,'ell, J.

text:
    No. 3811.
    W. S. Donnell et als. v. E. Gant et als.
    ' The recording of an. abstract of an inventory of a deceased wife of a man named, fixes tlie presumption of the existence of minors whose rights are preserved by the recording of the abstract, and tlie recording of such an abstract is sufficient notice to third persons, of the existence of a tacit mortgage, resting upon the property of survivor in favor of the minors.
    Appeal from the Seventh Judicial District Court, parish of Pointe Coupéo. Miller, J.

      Gooley & Philips, ‘for plaintiffs and appellants. Thomas II. Mewes, for defendants and appellees.
   IIov,'ell, J.

Justus Reynolds, the father and natural tutor of several minor children, resigned his tutorship on the twenty-eighth of March, 1860, and the grandmother of said children was appointed tutrix. On the twenty-fourth of June, 1867, she obtained judgment against Reynolds for $6596 03, with legal interest from the seventeenth of January, 1861, costs and legal mortgage, and caused it to he recorded on the twenty-eighth of June, 1867. On the seventh of December, 1869, sbe obtained judgment against one Naswortby Bell, as third possessor, to whom Reynolds had sold a plantation in February, I860, and an order to sell said property to satisfy the judgment against Reynolds. At the sale on the fifth of February, 1870, the property was adjudicated to the defendant Gant, and all mortgages were erased by the sheriff, and Gant issued a monition and obtained the homologation of said sale. Among the mortgages canceled by tlie sheriff were two judicial mortgages against Bell in favor of these plaintiffs, and recorded on the thirteenth of January, 1868. Tliey now sue to have their said mortgages reinstated and enforced against the said property and any mortgages in favor of the minor children of Reynolds declared null.

They contend, very properly, that the recording of the judgment in favor of the tutrix, in June, 1867, did not operate a judicial mort.gage upon the property in question, as it had been sold long before by Reynolds to Bell, and that the only right of mortgage in favor of the minors depends on a compliance with the law of 1869, prescribing the mode of preserving such mortgages. This, they say, has not been done.

The law on this subject is found in section eleven of act ninety-five of 1869, which requires the clerks “ to make out an abstract of the inventory of the property of all minors whose tutors have not been required by law to give bond for their tutorship, such abstract to des>oribe the real property, and give the full amount of the appraisement of ail theproperiy, both real and personal, and rights and credits,” which must be recorded in the mortgage book before the first of January, 1870.

On the eighth of November, 1869, the following document was recorded:

State of Louisiana, parish of Pointe Coupée.
“ Extract of inventory of the succession of Mary P. Fontenot, wife of Justus Reynolds, made by John Mosbins, recorder, on the tenth of January, 1861 :
"Appraisement of slaves and amount of inventory:
"Nine thousand two hundred dollars ($9,200.)
" I, the undersigned deputy clerk of the Seventh Judicial District Court, in and for the parish and State aforesaid, duly qualified, do hereby certify the above and foregoing to be a true and correct extract of the original inventory of said succession of Mary F. Fontenot.
Pointe Coupée, October 25, 1869.
"(Signed) H. J. LEDOUX, Deputy Clerk.”

It is objected that this is insufficient, because it does not show against whom and in favor of whom the mortgage is recorded, it not appearing that Mrs. Reynolds left minor children, which can not be presumed, or that Justus Reynolds was their tutor if there are any;, and further, that what was secured, if anything, is the value of slaves, which could not be recovered, the object of registry being to inform third persons on these three points.

Prior to the constitution of 1868, third persons were entitled to no-information in this respect as to the existence of mortgages in favor of minors. That instrument declared that such mortgages, existing at the date of its adoption, should cease to have effect against third persons after the first of January, 1870, unless duly recorded, and mad© it the duty of the legislator to provide for their registration. That provision is contained in the section above cited, and by its terms-such mortgages upon the property of certain tutors are preserved so as to have effect against third persons, if an abstract of the inventory of the minors’ property, containing a description of the real property and the appraisement of every Icincl of property, is recorded- within the prescribed time. The purpose of the law is to show that a mortgage exists upon tlio tutor’s property in favor of minors and to what extent. When therefore, in conformity with this law an abstract is made as in this case of the inventory of a deceased wife of a man named, we must presume the existence of minors, whoso rights are to be preunauthorized thing. If there should be no minors no mortgage would attach; but the recording of such an abstract notifies third persons that a tacit or legal mortgage rests upon the property of the survivor in favor of any minor heirs of tlie decedent, and they deal with him with such knowledge. served, otherwise the clerk and recorder would be doing a vain and

In this instance a tacit mortgage existed prior to 1870, and we think there has been a compliance with the law providing for its preservation as against third persons.

As to tho last objection, it is sufficient to say that the judgment has been executed, and it is too late to inquire into the consideration on which it was based.

It is therefore ordered that the judgment appealed from be reversed and that there be judgment in favor of defendants rejecting the demand of plaintiffs with costs in both courts.


text:
    No. 3650.
    State v. Toney Forney.
    Tlie pbraso “with malic© aforethought” is not sacramental in an indictment for a statutory oifonso, where tho accused is charged with feloniously and maliciously, while lying in wait, with, shooting his victim, with tho intent to commit murder.
    In such a case, Held — That the accused not being charged with having committed at on© time, two offenses, whoso combination creates a capital offense, it is not necessary to define the offense of murder, but that tho idea of malice aforethought is necessarily implied in the use of tho word “ murder.”
    Tho fact that one of the jurors is allowed to leave the court room for a necessary purpose, who returns before tho panel is complete, or any evidence has been given, is not such a separation of tho jury as will vitiate tho verdict.
    PPEAL from tlie Eighteenth Judicial District Court, parish of Bossier. Watldns, J.

      T. 13. Paxton, District Attorney, for the State. J. li. Griffin, for defendant and appellant.
   Howe, J.

Tho defendant was indicted for shooting with intent to kill and murder, while lying iu wait, under section 790 of the Revised Statutes of 1870, and having been found guilty without capital punishment and sentenced accordingly, has appealed.

He makes two points here, firstly, that the indictment is totally defectivo, and secondly, that there was on the trial a separation of the jury which in a capital case vitiates their verdict.

First — We do not perceive that the indictment is deficient, either in the specification of the time the crime was committed, or of the elements of the crime itself.

It is alledged that the offense was committed on the thirtieth day of •June, 1871, and the unnecessary use in the latter portion of the same •sentence of the phrase “ on or about the said thirtieth day of June, 1871,” can not bo considered as anything but harmless tautology.

The specification of the offense is that the accused " willfully, feloniously and maliciously while lying in wait * * did shoot, to wit, with a shot gun, with the intent to kill and murder, one M. D. Dennison, in the peace of the State then and there being, contrary to the form of the statute,” etc., etc.

The offense is statutory and appears to be fully described. It is averred that the defendant lay in wait; that he shot the object of his crime, that he did this willfully, feloniously and maliciously, and that he did it with intent to murder his victim.

The appellant contends that the use of the phrase “with malice aforethought” is sacramental, and that its omission is a fatal defect. We can not assent to this view. The defendant is not accused of having committed at one time two offenses, whose combination creates a compound and capital one (as in the case of Brown, 21 An. 347.) It is not therefore necessary to define the offense of murder as if he were indicted for that also. He did not commit that offense, when the description of what he did is given as above, and it is charged that his intent was to murder the person of whom he lay in ambush, and whom he wounded, the idea of malice aforethought is necessarily implied in the uso of the word "murder,” and tho defendant amply advised of the charge against him.

Second — Nor do we think there was such a separation of the jury in this casé as would vitiate a verdict.

Before the jury had been completed and cmpanneled, and of course before the indictment had been read to them or any evidence adduced, one of the nine who had been sworn, left the court room for a necessary purpose and went into an adjacent alley. He was not out of the view of the sheriff more than ten seconds. He spoke to no one. The ¡sheriff observed that there was no one else in the alley. He returned to his seat before the trial began. In such a case we think it would be pushing technicality too far to say that the verdict should be set aside, for there is no room for any reasonable hypothesis of misconduct. In each of the cases of Hornsby, 8 Bob. 554; Crosby, 4 An. 435; Evans, 21 An. 321, and Frank, 23 An. 213, cited by defendant, there was a real separation of the jury after the trial had begun and evidence had been taken, and there was a strong and perhaps conclusive presumption of misconduct. But in the present case we see no such reason for a new trial.

Judgment affirmed.


text:
    No. 3758.
    Pierre Aillet v. James C. Woods.
    .A noto given in renewal of one which is secured by a vendor’s privilege on real estate is not a novation of the debt, nor is tho privilege lost. But if tho mortgage has not been rein-scribed within ton years, then the vendor’s privilege would bo postponed to other mortgages of prior date to tho reinseription. 2 An. 100.
    from tlie Fifth Judicial District Court, parish of West Baton Rouge. Posey, J.

      Barrow & Pope, for plaintiff and appellee. uET. If. Pavrot, curator ad hoe, appellant.
   Howe, J.

This is a suit upon a promissory note drawn as follows, to wit:

“ $10'00. West Baton Rouge, March 1, 1881.
•“ Five years after dato I promise to pay to the order of Mr. Pierre Aillet, the sum of one thousand dollars, loaned money, with Jive per ■cent, interest from date, payable annually in the month of March, and if the interest should fail to be paid, then the principal and interest, both due.
“ (Signed,) JAS. C. WOODS. ”

The suit was filed December 3, 1866, and citation served on defendant on the fifth. An amended petition was filed on April 4, 1867, alleging that the note sued on was given in renewal of one originally given by defendant to plaintiff for the purchase piice of a tract of ¿and, and bearing vendor’s privilege of date the twentieth of July, 1854.

Upon suggestion that tho defendant had become an absentee, a curator ad hoe was appointed to represent him.

The defense is a general denial, novation, and a plea of five and ten years’ prescription and the judgment was rendered in favor of plaintiff, with recognition of Ms vendor’s privilege on the property described in tlie act of sale. The curator ad hoe has appealed.

There is evidence in the record to show that tho note was given as alleged by plaintiff in renewal of one having a vendor’s privilege on the land described, and we do not perceive any force in the pleas of novation and prescription.

The act of sale of the land was recorded July 20, 1854, and rein-scribed November 10, 1865. The privilege may have been postponed by peremption, tó tho claims of other privileged or mortgage creditors of defendant, lint it was not necessarily lost as to the defendant himself. Rev. C. C. 3369, Shepherd v. Orleans Press, 2 An. 113. The ■principal debt seems to have been kept alive; no other creditor is ■before us and we do not see clearly what practical interest the defendant has in tho only question wliich he discusses with much earnestness, namely: whether the judgment was correct in according a vendor’s ¡privilege on the land.

.Judgment affirmed.