text:
    No. 876.
    Barrett’s Executors v. Patrick Halpin.
    The Second District Court of Kew Orleans is without jurisdiction in a suit where an estate is plaintiff. Tho Courtis limited to prohate jurisdiction alone. Acts 1865, p: 81, sec. 8.
    A PPEAL from the Second District Court of New Orleans, Thomas, J.

      P. H. O’Neal, for plaintiffs and appellees.

      A. McCarthy and Frank Haynes, for defendant and appellant.
   Labauve, J.

The defendant is sued as endorser of a note, executed by D. Donavon, for $450, dated 6th February, 1861, payable on the 1st of May of same year, bearing interest at eight per cent, per annum from maturity till paid.

The defendant first filed an exception, which was overruled, and lie then filed a general denial.

We considered the exception waived in this Court, as our attention has not been called to it.

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

The defendant and appellant has suggested in this Court that the Second District Court, wherein this suit was instituted, had no jurisdiction in this case, tho said Court being alone for probate affairs.

Wo are referred to tho statutes of I860, p. 81, \ 8, whore it is enacted : “That tlio ¡Second District Court for the. parish and city oí Now Orleans, filial! bo slridty a probato court, and .shall have exclusive jurisdiction only of all successions anil probate causes, and all appointments that may bp necessary in tho course oí administration of ('.states, ¡ill matters relative to minors, to persons interdicted and to absentees, or in which they are inierested, shall bo made and carried on in said Court.”

Wo arc of opinion, in passing the act constituting tho six District Courts of Now Orleans, it was the intention of tho lawgiver to restrict tho jurisdiction of the said ¡Second District Court to probate matters ¡done, and which are clearly enumerated, thereby excluding all other matters, indusio units <’s! (vetusto alteráis; otherwise that- Court would have been incumbered with so many other matters, that it would have become a Court of general jurisdiction, instead of being of s/rid probato jurisdiction:

Although tho exception was not made below, it must prevail. The Court had no jurisdiction rulionn m'l/erire.

""" It is therefore ordered, adjudged and decreed, that the judgment of the District Court ho annulled and avoided ; and it is further ordered aud decreed, that tho suit bo dismissed, ¡it tho costs of tho plaintiffs and appellees in both Courts.


source: Caselaw Access Project

author: IIyman, C. J.

license: Public Domain

text:
    No. 1270.
    Mrs. H. Hunley and Husband v. E. A. Scott.
    Courts will not enforce ;i contract, th'c consideration of which is Confederate notos.
    A PPEAL from tho District Court, Parish of East Feliciana, Posey, J.

      W. F. Fernán and I). J. TVec&jc, for plaintiffs and appellants.

      MoVea (C Hunter, for defendant and appellee.
   IIyman, C. J.

Defendant sold to Alexander Smith 60,000 pounds of ginned cotton, the price and consideration of which was Confederate notes, and the plaintiff, Mrs. ITunley, as the transferreo of Smith, brought suit against defendant to enforce tho delivery of tho cotton. Her husband joined in tho suit to assist her therein.

Prom a judgment rendered against her, she has appealed,

Tho bargaining in Confederate notes as tho price of the cotton, thereby giving credit and confidence to paper obligations issued by citizens in rebellion against the Government of tlio United States, for the purpose of promoting tho rebellion, was an unlawful cause of contract, and courts of justice cannot lend tlieir aid in the enforcement of such a contract.

Plaintiff contends that, as she is the transferree of Smith, tho unlawful cause in the contract cannot affect her.

Smith could not transfor to plaintiff’ greater rights than he himself had.

Tho judgment of tho lower Court is affirmed.


author: JEtauit, O. J.

text:
    No. 1288.
    Amos Towne v. Mrs. F. A. Bossier, Testamentary Executrix.
    Thu Suprouio Court will not presumo that the District Court received documents in evidenco without Om proper Dnitod Slates revenue stamps.
    A .VP32AL from the District Court., Parish of St-. Tammany, Ellin, J.

      Alfrwl Ilmuim, for plain tiff and appellee,

      (ten.' IF. Mnrlin and Penn, for defendant and appellant.
   JEtauit, O. J.

Plaintiff brought suit, in October, 1865, against tlio testamentary executrix of the succession of Joseph F. Auge Bossier, deceased, to recover judgment for half of the amount of three promissory notes, with interest.

The notes are for §l-,333j.';!' each—one became due on the 13th day of June, 1860; another, on the 13th day of September, 1860, and tbe third, on the 13th day of November, 1860.

They bear eight per cent, interest from the 10th day of June, 1858, tlio day of-their date.

Before their maturity, tlio deceased (Bossier) acknowledged that they were made partly for his benefit, and bound himself to pay on them to the extent of the half of the amount for which they were given, with interest.

The defendant filed in the lower Court the plea of prescription of live years.

The District Judge rendered judgment against the succession for tlio half of the amount of the notes, with interest and costs.

From this judgment the executrix has appealed.

There is no evidence in the record showing that the prescription on the notes due in June and September, 1860, was interrupted or suspended, and the plea of prescription as to them must prevail.

The defendant contends that the notes were received in evidence without having stamps, in contravention of the revenue laws of the United States.

The defendant did not object to the admission of the notes in evidence, and there is nothing in .legal form to indicate that the notes were introduced in evidence without stamps.

This Court cannot presume that the District Court authorized a fraud on the government. See 18 An. 573.

It is ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the plaintiff, Amos Towne, do recover of tlio succession of Joseph F. Auge Bossier, the sum of six hundred and sixty dollars and sixty-six cents and two-tliirds of a cent, with interest thereon at the rate of eight per centum per annum, from the 10th day of June, 1858, till paid, and the costs of suit in the District Court.

It is further decreed, that this sum, interest and costs, be paid by F. A. .Bossier, the executrix of the succession of Joseph F. Auge Bossier, deceased, in due course of the administration of the succession. •

It is further decreed, that plaintiff pay the costs of this appeal.


author: ItiSIiEY, J.

text:
    No. 1256.
    John M. Bach v. M. Verbois et als.
    Tnc assertion of title by a third party to property about to bo hold at judicial sale gives him a sninding in court, by third opposition, to claim the pi'oceods of the sale in preference to others, and bv ihnt means to ratify tho sale.
    A PPEAL from the District Court, Parish of East Baton Rouge, Arer;/, ,T.

      ■f. TF. Burgess, for plaintiff.

      Dunn, Barrow & Pope, for defendant'.
   ItiSIiEY, J.

A judicial partition of a certain square of ground situate and lying in the city of Baton Rouge, designated on the plau thereof its the, “ Royal Square,” having been entered in the above entitled suit, mid a public sale thereof for that purpose effected, the city of Baton Rouge intervened as third opponents, claiming the whole proceeds of the sale as tho sole owners of the property, in virtue of a title which they derived from the United States. :

For the reasons hereinafter stated, tho Court sustained a motion to dismiss the opposition, because no legal cause was shown in the opponent's petition. “Tho petition oí tho opponents,” said the Judge, “in my judgment, shows no right whatever to tho proceeds of the sale of the land heretofore ordered by this Court to bo sold to effect a partition. The prayer of the said petition asks that tho owners be declared the owners of the land, and asks also that tho price for which it has been sold be paid to them. They also claim that by virtue of an act of Congress conferring upon them the ownership of the laud in trust for the owners of it, and for those who have interests in and to it, they have a lien aud privilege upon it, and, consequently, are entitled to the proceeds. Unless they were specially impowered by the act creating the trust to sell the. sumo for the benefit of the cestui, que trust, or bo authorized by the Court upon a proper legal showing for that purpose to dispose of it, they could not soil it, and if they could not sell it, they could not ratify a sale of it, and therefore would have no right to claim the proceeds of the sale, in case such sale were made, whether legally or illegally by parties to whom it did not belong. I am of opinion, therefore, that they should resort to a petitory action against those in possession of the land, to assert their rights, if any they have, and that they cannot, in the form now attempted, have them adjudicated. ”

From a careful examination of the opponent’s petition, wo think Uin Gourtbelow erred in sustaining the motion, and dismissing tho opposition. All the allegations in their petition must he considered as true, and after setting forth the grant by tho United States to them of the premises, they aver that when tho grant was made, there were no other owners thereof but the United States, whose title they held absolutely and unconditionally in fee simple. This would certainly give them a standing in Court under Article 396, part 1, et seq, C. P., to claim the price in preference to others, who had no title to the land, and by that means ratify the sale.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court dismissing the opposition he annulled, avoided and reversed, and it is further ordered, that the opposition be reinstated, and tho case remanded to be proceeded in according to law, at the costs of the appellees.


author: Hyman, O. J.

text:
    No. 1325.
    State of Louisiana v. Benjamin Butman.
    In cases of conviction of the crime of libel, the law authorizes punishment by line or imprisonment, or both, at the discretion of the Court. Acts of 1855, seo. 21.
    ‘ Where the Judge has limited his sentence to a fine, he cannot imprison move than twelve months in default of payment of the fin8. Acts of 1855, sec. ‘i.
    A PPEAL from the District Court, Parish of St. Tammany, Milis, J.
    . A. 8. Herron, Attorney General, for the State.

      If. H. Penn, tor defendant.
   Hyman, O. J.

This ease was on appeal to this Court in 1860, and was remanded to the District Court, with instructions to the District Judge to pronounce sentence on the, accused according to law. See 15 An. Eep. p. 166.

In compliance with the instructions from this Court, the District Judge rendered judgment against defendant, sentencing him to pay a fine of five hundred dollars and the costs of prosecution, and decreeing that, in default of payment thereof, the. defendant ho imprisoned in the parish jaii for twelve months.

The law authorized punishment' for the crime of libel (of which mime defendant was convicted), fine or imprisonment, or both, at the discretion of the Court. (See act relative, to crimes and offenses, section 21, approved March 14, 1855.)

This discretion is limited, so that the line shall not exceed one thousand dollars, nor the imprisonment two years. (See 6th section of an act relative to criminal proceedings, approved March 14th, 1855.)

The law further declares that, when the Judge limits his sentence to a fine, he cannot decree that the person sentenced be imprisoned more than a year for default of payment of the fine. (See 4th section of same act.)

It appears that the District Judge has decreed against defendant under the provisions of the, last named section.

He has not exceeded the limits of the law, either in the fine or term of imprisonment.

The defendant has appealed from the judgment of the District Judge foil the purpose of delay.

Let the judgment of the District Judge he, affirmed.


author: Howell, ,T.

text:
    No. 1272.
    John Reeve v. Mrs. M. E. Doughty, and L. D. Chance.
    The want, failure, or illegality of consideration may bo established by parol testimony between the parties to the note.
    Where the consideration of a promissory note is shown to be Confederate treasury notes, the Courts of this State will not enforce its payment.
    A BPEAL from the District Court, Parish of East Eelioiana, Posey, J.

      W. F. Kernan, for plaintiff and appellant.

      Gross <£• Hardee, and Pace, Foster é F¡. T. Merriok, fpr defendants.
   Howell, ,T.

Tliis is a suit upon a promissory note for $533 28, with ten per cent, interest, signed by the defendants, who allege that the whole contract is null and void, being based on a consideration (Confederate treasury notes) reprobated by the policy and laws of the United States.

The case was tried by a jury, and a verdict and judgment for §63 09 were given in favor of plaintiff, who, after an nneffectual effort to obtain a new trial, has appealed.

Our attention is called to a bill of exceptions to the ruling of the Judge a quo, admitting parol testimony to prove the consideration to bo Confederate treasury notes, to which plaintiff objected on the ground that defendants could not contradict their written acknowledgment and parol.

The. want, failure, or illegality of consideration may be established by parol between the parties to the note. 12 3VL 402, 475. 3 M. 643. 1 N. S. 90, 625. 8 N. S. 558. í L. 197. 10 L. 390. In a case like the present the paramount interest and policy of the public require, that such a defense should be allowed and established, and it is seldom, if ever, that other than parol evidence exists. 10 A. 199. 12 A. 219.

The evidence is direct that the consideration of the note sued on was Confederate treasury notes, and the whole contract is therefore null. 17 A. 263. The plaintiff is in possession of the evidence of an obligation which cannot be recognized in the Courts of this country. We agree with his counsel in the proposition that, defendants either owed him the amount of the note, or they owed him nothing-; but the cause of the contract, the consideration of the notes being manifestly unlawful, against law, good morals and public order, exacted no obligation on the part of the defendants. There should have been a judgment rejecting plaintiff's demand.

It is therefore ordered that the judgment appealed from be reversed, and the verdict of the jury set aside, and it is now ordered that tlio demand of the, plaintiff be rejected, with costs in both courts.


author: Howell, J.

text:
    No. 1286.
    James Nash v. A. L. East.
    1 ii a suit brought; ou a promissory note by a third holder against the maker, the payee and endorser is a competent witness for the makor to provo a subsequent agreement between the maker and payee, i hen the holder by which the note was to be extinguished.
    A PPEAL from the District. Court, Parish of East Feliciana, Posey, J.
    TK P. Kernan, for plaintiff and appellee,.

      MaYeu (f Hunter,, for appellant and defendant.
   Howell, J.

This is an action on a promissory note by an endorser, after maturity, against the maker, the defense to which is a failure of consideration, and a subsequent agreement between the maker and payee, that the note should be extinguished by an account held by the maker against the mother of the payee.

The only question is presented by a bill of exceptions taken to the ruling of the District Judge, excluding, on the score of Ínteres);, the testimony of the payee offered by the defendant and appellant.

If ha be viewed as an unconditional guarantor to his immediate endorsee, he is called on to testify against his own interest, as the release of tlio maker may make him solely liable. But if he stands in the same situation as the drawer or endorser of a bill, his endorsement creates a collateral liability only, which is dependent on a reasonable presentment and notice, which must be shown before the liability is fixed. Story on Notes, 128, 133, 134; 12 M. 177.

In either view he is a competent witness for the maker.

Justice requires the case to be remanded to afford the parties an opportunity to have their rights adjusted, as the record does not enable us to do so.

It is therefore ordered that tlie judgment appealed from be reversed, and tlio case remanded, to be proceeded in according to law, with instructions to tlio District Judge to admit the testimony of L. W. Brown, the endorser.

Plaintiff to pay costs of appeal.


text:
    No. 1208.
    Marta E. Miller and Husband v. V. J. Dupuy et als.
    A suit is brought against the sureties on a tutor's bond, and defendants obtain an order of Court sus* pending all further proceedings in the cause, until the rights of plaintiffs and other parties contesting them, under certain seizures of the tutor's property, made since the institution of (lie suit, shall be determined : Jicld—That an irreparable injury may result from such interlocutory decree, and the plaintiffs are entitled to an appeal therefrom.
    Where an exception has been tried and overruled by the District Judge, the same (lucstions involved in the exception cannot be pleaded in the form of a motion to suspend further proceedings in the cause; this would be to renew and re-examine the exception which had been overruled The decision on the exception may be reviewed with the merits on appeal.
    A PPEAL from the District Court, Parish of Iberville, Posey, J.

      Bari ow <& Pope, for plaintiffs and appellants.

      Talbot di Petit, for defendants and appellees.
   Howell, J.

A motion is made to dismiss the appeal in this case, on the ground that the judgment appealed from is not a final one, nor is it such an interlocutory order or decree as will cause an irreparable injury to the appellant.

The suit is brought against the sureties on a tutor’s bond, and, during the progress of the cause, the defendant, Y. J. Dupuy, made a motion to suspend all further proceedings until the rights of plaintiffs, and other parties contesting them, under certain seizures of the tutor’s property, made since the institution of this suit, to satisfy the claim of plaintiffs against said tutor, shall be determined, on the ground that said defendant is entitled to avail himself of the benefit of any sum recovered of his principal, the tutor, or any amount from which the said tutor might be released by the laches, informal and irregular proceedings on tho part of plaintiffs in said seizures. The judgment granting this motion, and suspending indefinitely all further proceedings, is the one appealed from ; and we think it one which may cause irreparable injury to the appellant. It is something more than an. ordinary continúan oe. By it plaintiffs are prohibited from prosecuting fclieir rights, until other proceedings in other eases are concluded, thus procrastinating the suit to au indefinite period, which might result in a virtual denial of justice. The contests arising out of the seizures in question, the determination of which the proceedings in this case are ordered to await, may be protracted in the lower and appellate Courts, and, in tho mean timo, the condition of defendant changed, and the rights of plaintiffs seriously impaired.

The motion to dismiss must be overruled.

The question presented on this appeal is properly one of practice.

The defendant, Dupuy, filed an exception that plaintiffs had no right of action against him as security oil the tutor’s bond, until the necessary steps shall have been taken to enforce payment against tho principal. This exception was overruled, whereupon he filed an answer, and after-wards an amended answer, renewing the grounds of his exception as a defense to the suit, setting forth certain acts of plaintiffs as operating his release from liability, and other proceedings on their part, which entitle him to have this suit suspended until they are disposed of.

At a subsequent term of the Court, he makes virtually the same matters the basis of a motion to suspend further proceedings. This is a practico unknown to our law or jurisprudence. If plaintiffs had a right of action against tho surety, as the Court had decided, they were entitled to prosecute that action to a judgment, without reference to their proceedings against the principal. The correctness of the ruling on the exceptipn can bo reviewed on appeal from the final judgment on tho merits.

Plaintiffs either had a right of action against the surety on the tutor’s bond, or they liad not. Their right of action having been recognized by the Court, the order suspending proceedings, for the cause alleged, was irregular; it was virtually renewing and maintaining the exception which had been overruled. Tho fact that plaintiffs, pending their action against the surety, discovered and levied upon property of the principal, does not, in our opinion, lessen their right to prosecute an action already accorded to them, whatever may be the effect thereof, under an execution on any judgment they might obtain.

It is thérefore ordered, that tho judgment appealed from be reversed, and the case remanded to be proceeded in according to law; defendant and appellee to pay costs of appeal.

Labauve, J., recused.


author: IIowelt,, J.

text:
    No. 1213.
    Nelson Potts v. Mrs. E. Blanchard, Wife of F. Cooney, et als.
    A part of the heirs of an estate sold to the other heirs their interest in the property of the succession, consisting of land, slaves and movables. The vendees specially mortgaged “ said land, slaves and movables,” to secure notes given in part payment, and in said mortgage described the whole property of the succession: Held—That the mortgage attached to the whole property, and not alone to the interests conveyed by the vendors.
    A PPEAL from the District Court, Parish of West Baton Rouge, Posey, J.

      Barrow cO Pope, for plaintiff and appellant.

      Favrot & Lamon, for defendant and appellee.
   IIowelt,, J.

On tlie lOtli February, 1859, four of the heirs of Widow Blanchard sold to tlie remaining eight lieirs, “all their right, title, claim and interest in and to the succession of their late mother, deceased, and consisting in lands, slaves and movable effects as set forth and described” in the act of sale, taking in part, payment twelve notes to secure the payment, of which “at maturity said land, slaves and movable effects shall remain specially mortgaged and hypothecated in favor of tlio vendors, or any holders of said notes. ” The vendees formed an ordinary partnership under tlie style of Y. Blanchard cfc Oo., which firm, on 23d February, 1859, borrowed $20,000 from Nelson Potts, iilaintiff. and mortgaged all tlie property which belonged to the succession, and the same as described in the first named act, to secure tlie payment of the note given for the loan.

Plaintiff brought this suit against all of the said heirs to have his mortgage decreed to have priority over that in favor of tlie said vendors, so far as tlie two-thirds of the property originally owned by said vendees were concerned. He subsequently filed a supplemental petition, asking for judgment against the members of the firm of V. Blanchard it Co., jointly.

Three of tlio said vendors deny tlie preference claimed by plaintiff, and aver that as holders of the notes taken by them they arc entitled to priority of rank over plaintiffs as mortgage creditors. The fourth one excepted to tlie action, alleging that slio has no interest., having parted with lier portion of the notes.

Judgment was rendered sustaining this exception, and rejecting plaintiff's demand of priority of rank, from which lie appealed as to tlio three heirs only, who answered.

Tlie question presented is one of construction of the act of mortgage, given by the purchasing heirs to tlieir vendors, tlie appellees—whether or not tlio whole property described in the act of sale and mortgage was mortgaged, or only the proportion or interest sold.

Wc think there can bo no doubt that the mortgage was intended to be, and was actually given upon the whole property, susceptible of mortgage, belonging to and constituting tlio succession inherited by tlie contracting parties*’, and which was described fully in said act. The vendors sold only their interest in said succession, tlio property in which that interest or right existed, and with reference to which the parties contracted, was the entire property of tlie succession, consisting of lands, slaves and movables, to all of which tlio vendees and mortgagors acquired a title by the act oí sale, and tlie clause establishing- a mortgage in favor of the vendors or other holders, stipulates that “ said land, slaves and movable effects shall remain specially mortgaged and hypothecated,” to secure tlio payment of the notes given. It does not say the proportion 'sold, but the property described, and tlie description is of the whole property.

The use of the word “remain,” makes it no less a contract of mortgage affecting- the property intended to be incumbered.

If any doubt existed, as to the interpretation of the mortgage clause, it should, we think, under Article 1952, C. C., be interpreted against the mortgagors, who are tlie obligors in the contract of mortgage, and whoso duty it was to expressly enumerate the property mortgaged, and to state precisely the nature and situation thereof. Meo O. 0., Arts. 3273, 3271 and 3275. The act in this case does, however, state precisely tho nature, situation and quantity oí the property on which tho mortgage is granted, to wit: tho property belonging to the succession oí Widow Blanchard fully set forth and described in the act oí sale, tho interest in and to which of four of tho heirs was sold to tho remaining eight heirs, tho latter acquiring title to and mortgaging all of said property in tho same act.

The authorities cited by plaintiff do not sustain his position.

We cannot inquire into his demand for judgment on his supplemental petition against tho makers of tho note hold by him, as there in no appeal as to them.

Judgment affirmed, with costs.


text:
    No. 1292.
    Jonathan Montgomery et al. v. Mrs. Eleanor E. Barrow and Husband, and Others.
    Issues oi fact, not l-aisod in tlic District) Court, will not be passed upon in tbe {Supremo (Jouit.
    Where real property was advertised by tho sheriff, and on tho day iixod he postpones tho sale, with out offering tho property, lie must advertise the same anew for thirty days, or the sale will be declared null.
    Discretion in the execution of legal solemnities cannot be suppoi ted.
    A RPEAL from the District Court, Parish of West Feliciana, Cooky, J.

      F. II. Farrar and B. Montgomery, for plaintiffs and appellees.

      S. J. Powell, Collins & Lenice, and Bare, Foster <6 F. 71 Merrick, for defendants and appellants.
   Howell, J.

This suit is brought to annul the sale of a tract of land belonging to the insolvent succession of Win. R. Barrow, deceased, made by the sheriff at tho instance of the creditors.

A motion is made to dismiss the appeal, on the ground that all the creditors of the succession are not made parties to the appeal.

If any others than plaintiffs have an interest in maintaining the judgment of the lower Court, that interest is covered by the insertion in tho appeal bond of the words, “and others,” as obligors—the appeal having-been granted on motion in open Court.

The motion to dismiss must be overruled. •

An exception was taken to the capacity of the Bank of Louisiana to stand in judgment, but not being urged in this Court, it is considered waived.

Of the many grounds, taken by plaintiffs in their petition, for setting aside the sale, two are urged in this Court, to wit :

1. That the legal notices to creditors, required by law in insolvent proceedings, were not given.

2. That the property was not advertised for the length of time required by law for the sale of immovables.

Another ground, that the sheriff did not sell personal and real property for cash, to the amount of $20,500, before selling any of the land on a credit, as directed in order of sale, is raised before us ; but not having been pleaded or passed on in the lower Court, such an issue cannot be made here, this Court not being vested with original jurisdiction. G R. 2G5. 7 R. 138. 19 A, dG.

We consider it necessary to examino the second point only, deeming it fatal to the validity of the sale.

The whole property of the succession was advertised on the 9th December, 1865, to be sold by the sheriff, at the late residence of the deceased, on the 10th January, 18GG, on which day ho sold the personal property, amounting to only $561, and, uuthonl offering the immovable properly, postponed the sale thereof to the 3d day of February, at the court-house, continuing the same advertisement, with a notice at the foot of it, in the paper of the following week, of the postponement; on which day, being twenty-four days after the first day, and about twenty days after the second advertisement, the laud in controversy was sold, and bought by the defendant, Mrs. Eleanor E. Barrow, one of the heirs.

It does not ax>pear that the sheriff was unable, for want of time, to complete the sale on the first day, hut, in his return, he states that the sale was postponed because there were no bidders for real property present. I-Ie does not inform us how he ascertained this fact, while his return shows that Mrs. Barrow, who bought at the second sale, must have been present, as she purchased most of the personal effects.

Admitting the necessity and propriety of a postponement, wo think the law applicable -to such. cases required the second advertisement to he for thirty days, which is the only advertisement prescribed for the sale of immovable property belonging to successions (seo O. C. 1159), except as provided by Article 990 G. P., which directs that property, which does not bring the appraised value al i/s Jirsl offerimj, shall he sold within a given time on a credit of twelve months, and cannot bo held to apply to the present case, in which the property was not offered at the first sale, but was sold on the terms fixed by the creditors, and should have been advertised de novo for thirty days. Unless some special law is shown, providing a different rule for such a case, tlio general law must he followed, and that law requires thirty days’ advertisement of real estate.

“ The doctrine of discretion, in the execution of legal solemnities, cannot be supported on any ground—even that of necessity. The abuses to which it would open a door are too obvious to require any comment.”

Judgment was rendered in the lower Court in favor of plaintiffs, which wo think correct.

Judgment affirmed, with costs.


author: Labauye, J.

text:
    No. 1179½.
    Alma J. Munson, Wife of G. A. Graves, v. Francis E. Robertson, Administrator.

      An endorsement of payment on the bade of a note, without evidence showing when and by whom such endorsement was made, will not interrupt prescription.
    ■Whore a noto is proscribed on its face, audit is not proved that plaintiff could not have brought his action at an earlier date, the plea of prescription will prevail.
    Tlio mere existence of the lato wav did not of itself suspend prescription.
    A PPEAL from the District Court, Parish of Terrebonne, Gales, J.

      Clifford Belcher, for plaintiff and appellee.

      F. N, eft J. G. Goode, for defendp.pt and fipp%ll,apt,
   Labauye, J.

This suit is brought against the estate of Royal March, on a mortgage note dated 5th January, 1858, payable twelve months after its date, for §5,000, with a credit endorsed on the note, 26th June, I860, for §110 50.

The defendant, among other defenses, specially pleaded the prescription of five years.

The District Court, after hearing the evidence, gave judgment for plaintiff, and the defendant took this appeal.

The citation and petition were served twice on 'the defendant. On the 10th June and 19th July, 1865.

It is contended that the payment credited on the note 26th June, 1S60, acknowledged the debt and interrupted prescription, but there is no evidence showing by whom and when this endorsement was made, and it is well settled that, without such proof, the credit would not interrupt prescription. 11 R. 119. 1 A. 119. 7 A. 518. 10 A. 275. 12 A. 661. Therefore, the prescription commenced running from the 8th of January, 1859, and the note was prima facie prescribed on the flth of January, 1861; in that case, it was incumbent on the plaintiff to prove facts or circumstances, showing that prescription had been interrupted or suspended.

There is nothing in the record going to show that plaintiff could not have brought her suit sooner; the mere existence of the'war did not suspend prescription as a general rule. Upon questions of prescription, ihe circumstances and facts of each case, and the respective situation and residence of the parties must he taken into consideration as to the impossibility of bringing suit.

As the case stands, by the evidence in the record, were we to pass upon the question of prescription, wo are satisfied that the note would be considered prescribed. Wo think that justice requires the remanding of the case, in order to give the plaintiff a chance to show by further evidence that proscription was interrupted or suspended. Both parties have suggested in their briefs, the remanding of the case in order to have an opportunity to introduce further evidence on both sides.

It is therefore ordered and decreed, that the judgment appealed from be annulled and avoided, and that the case be remanded for further proceedings according to law; the plaintiff and appellee to pay costs of appeal.


text:
    No. 1321.
    Eli Dangerfield, f. m. c., v. Wm. N. Fauver.
    Where a person has been decreed to be the owner of a mule, in the possession of another, he is entitled to recover it, and hire for its services while in the possession of defendant, but he cannot recover its value in money, in default of delivery, without proof of what the property is worth.
    A PPEAL from the District Court, Parish of East Eeljciana, Posey, J..

      T) T T\T/>flnP -fn-p -nlivmt.ifP nnrl n.rmAll aa

      lifoVpn /Pi 7-Ttf'iiipn -Tai» r\ a-Patí ■ flft-nfr, n.nrl n.Tyñf>lln.nt..
   Hyman, O. J.

The plaintiff, who styles himself in his petition a f. m. e., brought suit to recover of defendant a mule.

Ho prayed in the alternative, either that he recover it or its value.

He also asked judgment against defendant for the value of its services from the time defendant was in possession of the same, to wit: January, 1865, to 25th July, 1866, the time when suit was instituted. •

Plaintiff sequestered it, and defendant released it from sequestration, by giving bond and security for its delivery to plaintiff, in tlio event judgment should bo rendered against bim, defendant.

Tire District Judge rendered judgment, decreeing that plaintiff was owner of the mule, and condemning defendant to deliver it to plaintiff, and also decreeing that, on liis failing to deliver it, plaintiff recover of him $250, its value.

The judge further decreed in the judgment that plaintiff recover of defendant fifty dollars for its services.'

The defendant appeals from the judgment.

The evidence satisfies us, as it did the District Judge, that plaintiff is owner of the mule.

It was his peculium, that his master permitted him, while a slave, to own, and was his property when he became free.

Defendant took possession of it, when it had strayed from its owner, and used it from January, 1865.

The'judgment of the District Judge is erroneous in decreeing defendant to pay $250 to plaintiff, on his failing to deliver it. There is no proof adduced of its value.

The judgment for its services is excessive. The proof is that its services were not worth more than $37 50, from the time defendant took possession of and used it, up to the institution of suit.

It is decreed that the judgment of the District Court be annulled, avoided and reversed, and it is further decreed that defendant deliver the mule to plaintiff, the owner thereof. If is further decreed, that plaintiff recover of defendant the sum of thirty-seven dollars and fifty cents for the value of its services, to 25th July, 1866, and the costs of suit in the District Court.

The plaintiff to pay the costs of appeal.


author: Tdsi/ey, J.

text:
    No. 853.
    Railey & Campbell v. Wm. Bagley et. als.
    Anattorney lias no authority lo rotease his client s debtor, except on payment, in the legal currency oí . the United (States.
    A , PPEAL from the District Court, Parish of Ht. Tammany, Jones, J,

      D. TV. FJeipien, for plaintiffs and appellants,
    (7. IK Martin, for defendant and appellees.
   Tdsi/ey, J.

This is a suit lo annul a receipt and satisfaction of judgment, and to reinstate as it stood originally on the records of the recorder, the mortgage held by the plaintiffs to secure their claim againsi tlie defendants William Bagley, and to be authorized to prosecute their suit via e.vpcnlira, No. 816, entitled Railey & Campbell v. William Bagley et al.

'The ground for the annulment, etc., is that the plaintiffs’ counsel and attorney was never authorized by them to receive in payment and satisfaction of their mortgage claim anything but the legal currency of the United States, or its equivalent, and they say that they are in no wise bound or affected by the act of their said attorney, in receiving without their knowledge or consent, as satisfaction of their said claim, bonds or treasury notes of the so-called Confederate States.

The defendant Bagley maintains the validity of the payment, made by him to the plaintiffs’ attorney, and says that the said payment was made, to the said attorney upon a forced demand without combination or collusion.

The parish recorder, who is made a j)arty to the suit, answers that the special mortgage of the plaintiffs was by him, the recorder of mortgages, canceled and erased by virtue of and pursuant to the express order, command and authorization of the District Court of the parish of St. Tammany.

The facts of the case, regarding the payment made to the attorney, arc stated by himself in his examination on the trial. He says that ho does not know the plaintiffs personally. Ho received from the firm of Bailey k Campbell for collection the note in the suit No. 816, and the receipt of the witness on file shows the settlement made on the 22d April, 1863 ; payment was made in Confederate money—treasury notes, which arc on their face an obligation to pay a certain sum at a stated term. On his cross-examination, he says: “Atthe time the suit No. 816 was brought, Confederate notes were the only currency. The military authorities threatened parties with punishment who refused to take Confederate money. He considered he had full power to collect and settle tlio debt; he had several letters from the plaintiffs, but cannot find them now. He says that Bagley, at that time, was receiving Confederate notes for all debts duo him. On the 22d April, 1863, Confederate notes were received at par for notes and debts ; they were received as gold and silver by the officers of the Courts. ”

Dr. Oarradine, another witness, says that at that time, in April, 1S63, there was a great difference between specie and Confederate money, and between the latter and the notes of the New Orleans banks.

The principle is settled beyond controversy, that an attorney has no authority to release his client’s debtor without payment; and that any agreement to receive payment in anything but the legal curroncy of the United States will not, without the consent of his client, be binding upon the latter. See 3 Bob. 278; 2 An. 328; 9 A. 488, and authorities therein cited.

The attorney’s receipt, in the present case, is given in full satisfaction of the plaintiffs’ claim, without specifying in what manner payment was made to him.

This would have concluded the plaintiffs, had they not shown that the payment was not made in the legal currency of the United States, oy any tiling legally equivalent to it, but in an issue deemed illegal, to wit: Confedérale treasury notes, without their knowledge and consent.

We are not called upon to say now what would have been the effect of a payment in that issue, had it been made to the plaintiffs themselves, but wo are all satisfied that it was entirely beyond the legal scope of the authority of an attorney-at-law to receive for his client anything but lawful money or its equivalent, -which is ordinarily taken as the representative of lawful money. Noland v. Rogers, 4 N. S. 146.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that judgment be and it is hereby rendered in favor of the plaintiffs and against the defendants.

It is further ordered, that the payment, acquittance and satisfaction of judgment acknowledged and recognized by the plaintiffs’ attorney, in the suit No. 816, in his receipt dated 22d April, 1868, be and the same are hereby declared illegal, void, and of no effect, and that the property described in the act of mortgage, referred to in the proceedings in said suit No. 816, of date 26 th March, 1860, to secure the note of two thousand dollars therein sued on, is still subject to the said mortgage therein recited; and that the cancellation or erasure by the recorder of mortgages in and for the parish of St. Tammany, of the said mortgage, on or about-the 20th August, 1863, is illegal and of no effect, and the said recorder is hereby ordered to annul the said erasure, and to restore the said mortgage to its proper legal inscription.

It is further ordered, that the plaintiffs be authorized to prosecute according to law their suit via exeeuliva, No. 816, entitled Railey & Campbell v. William Bagley, and to use such other legal remedies for the recovery of their said claim as they may deem necessary. It is further ordered, that the defendant pay the costs in both courts.


author: Taliaeekro, J.

text:
    No. 1102.
    Widow Alphonse Perret v. Pierre Roussel—Third Opposition of Edward Roussel.
    The prescription of four years, established by Article 356 of tlie Civil Code, does not apply where the minor, after he has obtained his majority, has made a settlement with his tutor, and taken the promissory notes of the tutor in liquidation of his indebtedness.
    The legal mortgage in favor of minors upon the property of their tutors, created by Article 3282 of the > Civil Code, is assignable, but it cannot be extended so as to cover the expansion of the debt by the addition of the interest stipulated in consideration of an extension of time.
    A PPEAL from District Court, Parish of St. John the Baptist, Beauvais, J.

      A. Frovosty, for plaintiff and appellant.

      Johnson, Denis, Berault <0 Legendre, and J. Bossier, for defendant and appellee.
   Taliaeekro, J.

Pierre Roussel, father and tutor to Emile Roussel and Edward Roussel, made a settlement with his eldest son Emile, on the day ho attained the age of majority, viz : 11th May, 1859. The indebtedness of the tutor was fixed at i$12,337 80, The settlement was made by potwial act, which was duly recorded on the 21st of May of the samq year. On the clay of settlement, the sum of §337 80 was paid, leaving §12,000 due. To this balance was added §2,880, the interest (at eight per cent.) on the principal, divided into annual installments—the whole amount being §14,880. Por the payment of this sum, the father executed seven promissory notes : one for §960, payable one year after date ; two for the sum of §2,160 each, payable two years after date ; two for the sum of §2,320 each, payable three years after date ; and two for the sum of §2,480 each, payable four years after date. These notes were drawn by Pierre Roussel, payable to his own order and endorsed by him. They stipulated the payment of eight per cent, per annum interest, from maturity, if nob punctually paid, and are paraphed ne varietur by the notary before whom the settlement was made. The object of the notary’s paraph seems to have been to identify the notes with the minor’s tacit mortgage, as it is expressed in the authentic act, that it “was reserved to his pupilary claim, the nature of which, t-lie parties agreed, could never bo considered as changed, and which, on the contrary, they intended to maintain in all its force and integrity.

One of the notes for §2,160 was transferred by Emile Roussel to Mrs. Perret, the plaintiff in this case, who obtained judgment upon it according to its tenor, on the 22d of September, 1865, with recognition of the legal mortgage to secure its payment.

On the 5th of May, 1866, there was a judgment recorded against Pierre Roussel, in favor of Joseph Bonneville, founded (as it seems) upon one or more of the notes of the series, furnished by Pierre Roussel to Emile Roussel, as before stated. Upon these judgments executions were issued and seizures made, on the 15th of May, 1866, of the same property—a tract of land with improvements, situated in the parish of St. John the Baptist.

On the 12th of July, 1862, Edward Roussel, the brother and co-heir of Emile Roussel, became of age. Pie instituted a suit against his father as tutor, and obtained a judgment against him on the 21st of April, 1866, for the same amount that was fixed as the tutor’s liability to Emile Roussel, the oldest son. The legal tacit mortgage was recognized in favor of Edward Roussel, as being concurrent with that of Emile’s, referred to in the notarial act before mentioned. An execution was issued oh this judgment of the youngest heir, and seizure of the same property was made ■ on the same day that the seizures of Mrs. Perret and Emile Roussel were made.

Pending these proceedings, Edward Roussel, by third opposition, filed a petition, in which he alleged that, by virtue of his legal mortgage upon his father’s property, he is entitled to bo paid by preference the entire amount of his judgment, interest and costs.; that Mrs. Perret and Bonneville have no mortgage of any kind on the property, subject to his gene ral mortgage ; that the mortgage right they claim is prescribed', if it ever existed ; and he prayed that they be cited, and that a decree be rendered in his- favor, as prayed for.

Mrs. Perret answered by a general denial. She sets up the legal mortgage accorded to her by the judgment rendered in her favor, in the suit entitled Widow Alplonse Perret v. Pierre Roussel, and also a judicial mortgage resulting from the recording of that judgment. She denind the opponcnt’s right to bo paid in preference to, or concurrently with, lier claim, out of tho proceeds of the property seized.

Bonneville does not appear to kavo been a party to this suit.

On tho trial of the opposition, tho Court below rendered judgment maintaining, in favor of Mrs. Widow Alphonse Pcrrct, tho legal mortgage accorded to lier by the previous judgment, for tho entire principal of lier claim and lor the whole amount of the interest thereon, calculated at live percent, instead of eight per cent., as expressed in that judgment, and decreeing that the claims of both parties bo paid concurrently out of 'the proceeds of the property seized, their legal mortgages being of equal rank.

Erom this j udgmont Edward Roussel, the opponent has appealed.

The questions presented for solution in this ease, are :

1. Is the claim of Emile Roussel against his tutor proscribed V

2. Is the legal mortgage of minors, upon the property of their tutors, assignable ?

The Article 356 oí tho Civil Code declares that “the action of the minor against his tutor, respecting tho acts of tho tutorship, is prescribed by four years, to begin from tho day of his majority.”

Tho Article 3282 gives to “minors, persons interdicted and absentees, a legal mortgage on the property of their tutors and curators, as a security for their administration, from the day of their appointment until the liquidation and settlement of their final account. ”

The action in the present case is not for the rendition of an account, nor for acts or omissions of tho tutor during the tutorship, by which tho minor suffered injury of any kind, but it is instituted by Mrs. Perret, as transíerree of Emile Roussel, to recover a part of tho sum dire him, as ascertained by an account of the tutorship, rendered by tho tutor and accepted and approved by the minor, after he attained his majority. We do not think, therefore, that the prescription of four years established by the Article 356 is applicable. 4 La. 368. 6 La. 161. 11 R. 491. 10 11. 173.

The effect of the liquidation of tho minor’s claim was to take it out of the provisions of Article 356, and to place it under those of Article 3508 of the Civil Code, limiting personal actions generally to tho period of ten years. But the debt due was to be paid in installments, for which negotiable promissory notes were given. This would seem to indicate the prescription of five years as the one applicable to tho case, inasmuch as promissory notes are prescribed in five years, reckoning from the time they become due. Whatever may be the nature of an obligation, evidenced by a negotiable instrument, it is subject to the same prescription as the instrument itself. This is well settled in the case of Conan v. Pulley, 11 An. 1. The note sued on by Mrs. Perret is dated 21st of May, 1859, and became due two years after date, that is, on the 21st of May, 1861. Tho 21st of May, 1866, was the period at which it would have been prescribed, had nothing occurred to prevent the prescription. Suit was instituted, however, on the 4th of September, 1865, and the citation served the next day. The obligation was not therefore prescribed.

In the next place, it is contended that legal mortgages are slricli juris, and should bo rigidly limited to the purposes for which they are estahlislied by law. It is urged in this case, tliat tlio pupilary mortgage cannot bo extended, to operate as security for the payment of tlio notes; that it is strictly personal to the minor, and can only be exercised by him to enforce tlio payment of his claims against his tutor, and that the giving of tlio notes did not extinguish the pupilary claim, on which alone the legal mortgage is founded ; that there was no novation, and that the preexisting obligation was not extinguished.

The indebtedness of the tutor to the minor, ascertained and fixed by final account rendered by the tutor, when the minor attains his majority, constitutes a claim or right which lie may sell and transfer. The law accords him a legal mortgage on the property of his tutor to secure the payment of that debt. The right of mortgage would be shorn of much of its value, if, when he finds it to his advantage to transfer liis pupilary claim, he could not also transfer the right which secures its payment. If this right were denied him, the debt against his tutor might bo rendered unavailable, at a time when he most needed the benefit of it.

It is the settled rule of this Court to construe legal mortgages strictly;. but, while this rule is' kept in view, we must give them all their proper efficacy. We find no law that prohibits the transfer of the legal mortgage given to minors upon the property of tlieir tutors. If public policy required that such transfer should be prohibited, it would be within the province of the legislator so to direct. Wo do not anywhere find that ho has dono so. On the contrary, Article 242-1 of the Civil Code, declares that “not only corporeal objects, such as movables and immovables, livo stock and produce, may be sold, but also incorporeal things, such as a debt, an inheritance, a servitude, or any other rights.”

Article 2615 declares that “ the sale or transfer of a debt includes everything which is an accessory to tlio same, as suretyship, privileges and mortgages. ”

In the case now under consideration, the usual objection, that the tacit mortgage acts secretly, has no place. In the attitude in which it is placed by the parties, it puts aside its feature of concealment. By an authentic act, oh the public records of the parish where the real estate is situated, which is affected by the mortgage, the intention of the parties is expressed that the right shall continue, and the notos are paraphed by the recorder and notary to identify them with the act.

But, in accordance with the rule just announced, the mortgage must bo restricted to its proper limits. It can not be extended to cover the expansion of the debt by the addition of the interest stipulated for the. extension of the time of payment. The tutor owed Emile Roussel, the elder brother, $12,000, with legal interest from tlio 21st of May, 1859, the date of the settlement. Edward Roussel, the younger brother, had judgment in his favor against the tutor for $12,337 80, with judicial interest from the 12th of July, 1862. The rights of the two heirs spring from the same source. The same legal mortgage secures those rights, and this equality of rights must be observed in the distribution of the proceeds of the sale of the mortgaged property. The judgment of the District Court was erroneous in allowing Mrs. Perrot the full amount of the note she brought suit upon. It should be reduced in tlio ratio that $14,880 boars tp $12,000, that, is, to $1,741 93.

It is therefore, ordered, adjudged and decreed, that tho judgment of the lower Court be amended, so as to enforce the mortgage claim of Mrs. Perrot to tho extent only of SI, 711 !)», with five per cent, interest from the 21st of May, 185!); and that, in all other respects, tho judgment be affirmed.

It is further ordered, that the defendant and appellee pay costs in both courts.


author: Idslet, J.

text:
    No. 141.
    L. H. Patterson v. Capt. J. Haslep, Part Owner, and Owners of Steamer Andy Fulton.
    Plaintiff shipped at 2Co\v Oilcans, December 18th, 18i>(‘, us pilot on tho i'nlton, bound on a voyage lo Bayou Mason; at Dunn’s landing ho voluntarily left tho boat, in oonsc<|uonco oi" being told by Iho captain bhat wages would be stopped while tho boat remained at that, point: lie has no action in (lamages nor for servicos b'oyond the time actually employed, lie not having put defendant in default.
    A PPEAL from tho Fifth District Court of New Orleans, Ogden, J.

      Singleton c6 Cluek, for plaintiff and appellee.

      Jl. <C' II. Marr, for
    defendants and appellants.
   Idslet, J.

It appears from tho record that on the 18th December, i860, the plaintiff shipped at New Orleans, as pilot on hoard tho Andy Fulton, hound on a voyage to Bayou Mat; on. Tho boat had proceeded up tho bayou as far as Dunn’s landing, when, on the 23d of tho same month, tho plaintiff loft her, in consequence oí a remark made by the captain, to this effect : “I suppose you know wages are stopped while we lay here, waiting to see whether wo will go up or down. If the bayou rises, wo will go up; if not, wc will go back, and will board you on tlic boat a few days. ”

Tho plaintiff alleges that ho is entitled at least to one month’s wages, and that (having received sixty dollars) there is still duo to him two hundred and forty dollars; and ho further says, that at the place at which he was discharged, it was impossible to obtain any conveyance to return lo Now Orleans, and lie was compelled to travel twenty-live miles, ton on a raft and fifteen on foot, to reach the Mississippi river. That his sufferings were very great, and he arrived at Waterproof completely exhausted, in consequence of all which ho claims seven hundred and forty dollars damages.

Tho defendants pleaded a general denial, and set up a special defense.

The case was submitted to a jury, who found a verdict for the plaintiff for two hundred and forty dollars, with legal interest and costs) and from a judgment thereupon rendered tho defendants have appealed.

Tho plaintiff’s wages wore rated on the books of the boat at three hundred dollars per month, but the testimony leaves it doubtful whether tho hiring at that rate was'by the month or by the voyage, or for the time only that the services wore rendered.

Tho plaintiff, however, put his own'construction upon it-; for, considering himself discharged by the. captain, he applied for and received, from, the officers of the boat payment for his services for tlie exact amount computed by tho time lie had rendered services upon tho boat, and this without objection or complaint.

Employed subsequently in the same manner, and in the same capacity upon the same boat at the. same rated wages, ((!. O. 1951) ho received for nine days’ services, ninety dollars. If tho remark made by tho captain was really a discharge or intended as a modification of any other or different contract, it was acquiesced in by tho plaintiff.

In any contingency, no action lay, because no steps wore taken by tin: plaintiff to put the defendants in default. 1907 O.O. Rut this was not resorted to, because the plaintiff was satisfied that there was no unexecuted existing contract, and tho bringing of the present suit was, as we think, an afterthought.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court bo, annulled, avoided and reversed, and it is further ordered that tho judgment bo and it is hereby rendered in favor of the defendants and against the plaintiff, with costs in both cqui'ts,


author: Laijauvk, ,T.

text:
    No. 1289.
    Theodore O. Stark v. Mrs. F. A. Bosster, Testamentary Executrix.
    An fin Ivy made by t.ho clerk of tho District (‘ourt in I ho margin of tho record of appeal, opposite tlu copy of noto snod on, staled that* “ No stamps as roipm-od by law, aiiiio.vod oi attached to thi* note," is not evidence that, the iiotewas roeeivod by (he loner Court u if bout. 1 In1 proper ruveium
    A PPEAL from the District Court, Parish of >St. Tammany, h'llin, ,1.

      Alfml llennen, for plaintiff and appellee,

      (rao. II. Venn, for defendant and appellant.
   Laijauvk, ,T.

This suit is brought on four promissory notes of Sl,5U0 each, dated 10th .Tune, 1858, and payable, respectively, in nine, twelve, .fifteen and eighteen months after dale thereof.

This suit was tiled on the 5th, and served with citation on the- I7th October, 1805.

The defendant first lilt'd the jilea of jiroseription of five years as a peremptory exception, resexving the right to answer over. This exception being overruled, the defendant jdoadod a genera] denial, and the want of consideration of said notes sued upon, the same being obtained under fraudulent representations, and used entirely for the use of said Stark, who jirotended to be owner or jiart owner of a resurrected concern, called tlie Louisiana Courier, now a defunct nowspajior, whoso whole value, including jiross, typo and material, did not amount to one-hundreth part of the sum of said notes.

The Court beloiv, after hearing the evidence, gave judgment for plaintiff.

The defendant took a devolutive appeal.

Tlie-defendant and appellant has abandoned in this Court all-the defenses made below, such as prescription and failure of consideration, to none of which he has called our attention, and they are considered waived, but he insists that the notes sued upon were introduced in evidence without stamps, and that the suit should haye been dismissed ; the only defense made in this Court, is as follows:

“This petition and notes annexed were filed 5th of October, 1865; none of these notes have ever been stamped, as the revenue law of the United States requires.

Tf offered and filed on trial below, it has been done in violation of a prohibitory law, and in fraud of the revenue law of the United States, approved 3d March, page 181.

The defendant and appellant could not consent to the filing of these notes as evidence without stamps, because the law forbids it.

There is no evidence in the record of pkintiff’s demand.

Appellant, therefore, asks reversal of the judgment of the lower Court, and that there be judgment in his favor, with costs in both Courts.”

The notes sued upon, being duly proved as to signatures, were offered and received in evidence below, without objection.

But we find in the margin of the transcript, opposite each and every note, the following entry under the seal of the Court:

“No stamp, as required by law, annexed or attached to this note.

21st February, 1867. Paul Gusman, Deputy Clerk.”

Exclusive of that entry, there is nothing in the record showing that the said notes were not stamped. In Roberts v. Murray, 18 An. 572, this Court said :

“The defendant contends that the judgment should be reversed, because the contract of sale was received in evidence without having a stamp as required by the revenue law of the United States Government.

The defendant did not object to the admission of the contract of sale in evidence, and there is nothing in the record to show or indicate that it was admitted without a stamp; and this Court cannot presume that the District Court authorized a wrong to be perpetrated on the Government, by permitting an unstamped obligation to be used as evidence. ”

Now the question arises: Is the above entry legal evidence before this Court, of the fact that there was no stamp as required by law, on the notes sued upon ?

. The clerk is a ministerial officer, whose duty and power are well defined by law.

After the appeal has been allowed and the surety given, the clerk of the Court from whose judgment the appeal is taken, shall make a transcript of all the proceedings, as well as of all documents filed in the suit, and annex to the same the petition of appeal, in order that the samo may be delivered to the appellant when demanded. C. P. Art. 585.

The clerk then is to copy all the proceedings, and all the documents as he finds them in the suit, without adding to or substracting from them one single word. His duty was to copy the notes as they were filed, without making any remarks «'eating negative or affirmative evidence for either of the parties. Had even the Judge below, stated in his judgment that the notes were not stamped as required by law, and dismissed the suit on that ground, it would be no evidence before us of that fact, as is well settled in our jurisprudence.

We can, therefore, take no notice of that entry, and the record remains without anything showing that the notes were not stamped as required by law. In other respects plaintiff has clearly made out his case.

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


text:
    No. 1188.
    Widow Cyprian Ricard v. Wm. G. Harrison.
    An obligor on. a special mortgage given as additional security to a note already secured by a mortgage given by anotliei party and on other property, cannot be treated as a third possessor.
    Such an obligor cannot avail himself of the plea of discussion.
    híotes endorsed in blank may be sued on by an agent or executor, having possession thereof, in liis own name, and a judgment thereon will bo res judimtu. The question of ownership is unimportant, except defendant lias an equitable defense against the true owner.
    A PPEAL from the District Court, Parish of Ibvervillc, Posey, J.

      W. B. Robertson, for plaintiff and appellant.

      Johnson, Penis, Beraull & Legendre, for defendant and appellee.
   Howell, J.

Win. G-. Harrsion, as owner and holder of several promissory notes, made by R. O. Ricard, to the order of and endorsed by the plaintiff, his mother, and secured by special mortgage on her plantation, instituted executory proceedings against said property, which plaintiff enjoined in this action. Said notes were given in part payment of a large property, purchased by said P. G. Ricard, and in the act of sale the plaintiff intervened, and, in order to give additional security for the payment of said notes, specially mortgaged and hypothecated, “in favor of Wm. G. Harrison, in his capacity of testamentary executor of the succession of S. T. Harrison, w’ho accepts the said mortgage, or in favor of any holder or holders of the said promissory notes,” the landed property fully described in said act and belonging to plaintiff. The injunction is based upon various matters, which will bo considered in the order adopted in the brief of counsel.

1. The non-observance of the forms of the hypothecary action, such as notice to the principal debtor.

The plaintiff cannot be' viewed as a third person, coming into possession of mortgaged property, but as the principal obligor in the act of mortgage, which it was competent for her, under Article 3262 O. 0., to execute, and she is therefore not entitled to the notice and other requisites in the hypothecary action proper.

2. The plea of discussion and the deposit of the money to defray the costs of discussion.

This plea, like the preceding, is erroneously based on the assumption that plaintiff is a third possessor. But if she were such, the plea would not avail her, as the exception of discussion cannot be opposed to creditors who have a privilege or special mortgage on tlio property found within the possession of a third person. O. O. 33G7. O. P. 73.

3. That the mortgage granted by plaintiff is null, on the grounds of error, fraud and intimidation.

The reoord does not sustain this defense,

There is no evidence of any artifices or improper practices on the part of defendant to induce the plaintiff to become the seenrity .and mortgage lior property in behalf of her son. On the contrary, it is evident that it was voluntary on the part of mother and son, who are shown to have been much pleased with the purchase and the terms and conditions. It was the son, the principal obligor'in the purchase, not defendant, who procured plaintiff as his security. The maxim, volenti, non Jit injuria, applies appropriately.

1. That the defendant had no right to sue in his own name to collect the notes in question ; that ho is not a holder in good faith, but that said notes belonged to the minor heirs of S. T. Harrison, deceased, and defendant is not their legal representative.

The notes are negotiable in form and endorsed in blank by plaintiff, and they became thereby payable to any holder, who, though an agent or executor, could sue in his own name. Hen. Dig. p. 180, No. 5, 2 A. 37(>. The fact that a third person is really the owner of the notes, is unimportant, except to enable the defendant in the suit enjoined, and plaintiff in this, to show an equitable defense against the trite owner, which she had an opportunity to establish. The judgment on those notes against her, in favor of defendant, will be res judicata against any one who might afterwards claim an interest in the notes. 18 L. 02. There is nothing to impeach the defendant’s good faith as holder. The evidence introduced by plaintiff herself shows that ho has been discharged by the District Court as executor, and recognized as the guardian, duly appointed in Maryland, of the minors and the agent of the legatees, under the will of >S. T. Harrison, deceased, and, as such, put in possession of the funds of the estate; And whether he, or those minors and legatees are the owners, is, inlaw, immaterial lo plaintiff, if she. has no equities against the. true owner.

The plaintiff does not complain of the want of authentic evidence to sustain the order of seizure and sale, but. that plain tiff is not the owner of the evidence on which it issued.

The injunction in this case was granted under Art. 789 O. P., without giving bond, and it has been hold that damages, under the act of 1831, cannot bo allowed on dissolving tlio injunction, as in other cases. 15 La. 101.

It is therefore, ordered, that the portion of tlio judgment allowing damages be reversed, and that, in other respects, it be affirmed, reserving to defendant, his right, if any ho has, to recover damages in another action.

It is further ordered, that plaintiff pay costs of the lower Court and defendant those of appeal.


text:
    No. 1191.
    Charles Kock v. M. S. Bringler.
    Au agent authorized to endorse notes in the name of his principal, and for liis use, having endorsed a note in liis name, it. presumed to have done so for the use of the principal.
    The laefc that notes are protested is not proof that the endorser thereof is insolvent.
    A notary public in tlio city of Now Orleans is authorized to appoint one or more deputies lo assist in making protests and serving notices, and whatever facts come necessarily within thoknowlodgo of the deputy, while tints assisting the notary may be certified to, and are as much evidence as though t\ itliin the personal knowledge of the notary.
    Notice of protest is properly served at the place of business of tlio party to whom it is addressed
    A BPEAL from tlio District Court, Parish oí Ascension, Jie.auvais, ,1.

      ■Johnson, Denis, BerauU cli Legendre, for plaintiff and appellant.

      Jiurlhe cO Trude.au, for defendant and appellee.
   Hyman, O. J.

Plaintiff sued defendant on a promissory note given by F. W. C. Cook, May 21st, 1861, for !$3,652 32.

It was made payable to tlio order of defendant, and was endorsed by Martin Gordon, Jr., as agent of defendant, before its maturity, Gordon making himself also bound on tlie note, subsequently to liis endorsement as agent, endorsed it in blank in his own name merely as endorser. On the maturity of tlio note it was presented for payment, aud protested for non-payment, and notice of its dishonor given to defendant and Gordon. By a written power of attorney defendant had authorized Gordon, “for defendant’s uso, to make and endorse promissory notes.”

Defendant, in answer to plaintiff’s petition, after denying ail the allegations of the petition, admitted “ that Gordon had authority to endorse notes for him, but only for defendant’s benefit and use,’’and averred that Gordon’s authority lias ceased by liis failure, before ho endorsed the note sued ou, aud that the consideration of the note was Confedérate money, the issue of rebels in arms against the Government.

There is no evidence that the consideration of the note was Confederate money, and this ground of defense is abandoned by defendant.

It being admitted by defendant in his answer, that Gordon had authority to endorse notes for his own use, aud Gordon having acted within the scope of his authority by endorsing tlio noto sued ou, the presumption is that lie acted for the purpose for which he was authorized, aud there is nC> evidence in the record to tlio contrary.

The evidence adduced to prove the failure of Gordon, before he endorsed tlio note, is that several notes had been protested, on which lie was endorser.

. This evidence does not show that he had failed, or that it was impossible for him to pay his debts when he endorsed tlio note for defendant.

With no proof of Gordon’s failure, previous to his endorsing the note, it is needless to determine in this case what effect tlie failure of an agent would have on the agency conferred on him by another.

Defendant contends that the notice is insufficient to bind him, if ho be endorser, as appears from the notary’s certificate of notice, the certificate being the only evidence of notice.

First, because the statement of facts made by the notary or his deputy, in the notary’s certificate of notice, is not evidence.

The certificate of the notary is as follows: “I, the undersigned notary, do hereby certify that the parties to the note have been duly notified of the protest thereof, by letters to them by me written and addressed, dated on the day of the protest, and served on thorn respectively in the manner following, viz: By delivering those for M. S. Bringicr, Martin Gordon, Jr., endorsers, to a clerk of the latter at his office (he not being there), by my deputy, Paul Grima, (the office of Martin Gordon, Jr., being also that of the said M. S. Bringicr,)” etc.

The notices were delivered on tlio day when the note was protested. •

Tlio facts stated in the certificate necessarily came ivitliin the personal knowledge of the notary or his deputy, and are evidence subject to he contradicted by other evidence. 17 La. 588. Act relative to bills of exchange and promissory notes, approved March 9th 1855. The note was protested in the city of Now Orleans by a notary of the city, and by law ho was authorized to appoint one or more deputies to assist him in making protests and delivery of notices of protests of bills of exchange and promissory notes, and whatever facts which necessarily come within the knowledge of his deputy, while assisting in giving notices, he, tlio notary, may state them in his certificate, and the facts thus stated arc as much evidence as if lie had certified that they were within his personal knowledge. Hee act relative to notaries of New Orleans, 6th section, approved-March 14th, 1855.

Secondly, because the notices of protest were served on Martin Gordon, Jr., who had not authority to receive such notice.

The certificate of the notary shows that notices were served oil Gordon, and on defendant.

Thirdly, because the notice to defendant was not put into the nearest post-office when protest was made,, addressed to him at his usual placo of residence, to wit: the parish of Ascension.

Defendant, in support of this position, refers to tlio act relativo to hills of exchange and promissory notes already referred to by us.

This act did not change the commercial law, as to the place where notice of dishonor of bills or notes were to be sent or delivered.

Notices of dishonor of a note or draft is delivered at the proper place, when delivered at the office or place of business of a party to a bill or note.

The District Judge rendered judgment against the plaintiff, and ho is appellant from the judgment. The judgment is erroneous.

It is ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed.

It is further decreed, that plaintiff recover of defendant the sum of three thousand six hundred and fifty-two dollars and thirty-two cents, with interest thereon, at the rate of eight per cent, per annum, from tliu 24th day of December, 1861, till paid, and costs of this suit.


author: Tabiai-ekbo, J.

text:
    No. 1285.
    Stephen Brady v. William Offutt et al.
    Claimants of land under tax sales are held rigidly to show that all the requirements of law have been fully complied with. Itis incumbent on them to produce tlio assessmenband show its legality.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      Me.Vaa <0 Hunter, for plaintiff and appellant. Fnmict & Kühmrne, for defendants and appellees.
   Tabiai-ekbo, J.

This is a petitory action brought by the plaintiff to recover a tract of land in possession of the defendants, who, as ho alleges, illegally retain the same, to his great annoyance and injury. Ho prays judgment decreeing him to be the owner of the land ; that he bo put in possession, an'd that defendants be condemned to pay him two hundred dollars per annum rent, so long as they continue to withhold tho same.

Tho defendants oppose to the plaintiff’s title a deed made to them by one Nonworthy, a parish tax collector, who sold the' laud for parish taxes in December, 1850, at which sale the defendants purchased. Judgment was rendered in the Court below in favor of defendants, quieting them in their possession, and tho plaintiff appealed.

The plaintiff shows, a regular chain of title from ¡Shields, the original grantee ; and ho shows that Chambliss, who bought from Shields, was tho owner of tho laud by regular conveyance of record in the parish in which tho land is situated, at the time it was sold for parish taxes. Tho defendants introduced a certified copy of tho assessment of the land for the year 1849, showing that the parish tax on the land for that year was one dollar and forty cents ; and that it was assessed as tho “ Mooney tract.” lu the adjoining column of description, it is stated to contain six hundred and forty acres ; its boundaries on three sides are given, and stated that it is “known as the Shields tract.” They also show the act of sale made by tho tax collector, in which ho specifies boundaries, and designates the land sold as tho “Mooney tract.”

It has been settled by several decisions of this Court, that tho claimants of land under tax sales are hold rigidly to show that all tho requirements of tho law in regard to them have been fully complied with, under pain of nullity.. It is incumbent upon such claimant to produce tho assessment of tho property, and to show tho legality of tho assessment. In regard to parish taxes, an ordinance of the police jury, levying tho tax, was hold necessary in a case very similar to this, in 16 An. 118, Templeton v. Board of Levee Commissioners.

Here no ordinance is shown. Tho assessment was made in tho name of “ Mooney,” a non-residout, in whom no right whatever is shown to have ever existed ; while it appears that, at the time of tho assessment and the sale, the title of Chambliss was of record in tho parish. In conformity with the well-settled rjulcs, in relation to forced alienations of lids character, wo fool bound to consider the defendants’ title defectivo, and that tho judgment of tho lower Court should bo reversed. 6 N. H. 31.8. 7L. GO. 10 L. 283. 13 L. 205. 4 An. 248. 6 An. 542. 8 An. 19. JO An. 329. 14 An. 210.

It is therefore ordered, adjudged and decreed, that tho judgment of the District Court bo annulled, avoided and reversed. It is further ordered, adjudged and decreed, that the plaintiff have judgment in his favor, decreeing him to bo the owner of the tract of land described in his petition’; that ho bo put in possession of the same, and that a writ of possession to that effect be issued. It is further ordered that defendants and appellees pay costs in both courts.


author: Taeiaeekbo, J.

text:
    No. 1320.
    J. B. Graves v. Hardesty & Harris.
    The plcaof a tender of payment in Confederate money will not avail defendant, although it was tin4 circulating currency at the time.
    A PPEAL from, the District Court, Parish of East Feliciana, Posey, 3'.

      Muse & Pipkin, for plaintiff and appellee.

      F. ITardesly and Mo Cea cD 1-hmter, for defendants and appellants.
   Taeiaeekbo, J.

This suit is brought on a promissory nolo for the sum of §4,558 50, executed in solido by the defendants in favor of D. C. Hardee, executor of Ezra Stokes, deceased, dated October 12th, 1863, and made payable twelve months after date, with eight per cent, interest from date. ‘

The defense is, that the note was given for cotton at a time when Confederate money was the only currency in circulation; that some time in 1864, in view of meeting the payment of this debt, a largo amount of this cotton was sold and a tender made in Confederate money, which was refused. The defendants offered a witness to prove that the consideration of the note was Confederate money. Objection was made by plaintiff, but the objection was overruled, and the witness allowed to testify. He failed, however, to prove that the consideration was Confederate money. He stated that in the year 1864, greenback or United States monoy was also in circulation to some extent in that section of country, and he 'thought the Confederate officers used about as much of it as they did of the Confederate monoy.

It appears that a part of the cotton sold to the defendants was retained by the executor, and refused to bo delivered until defendants gave security for the payment. The cotton belonged to the succession of Ezra Stokes, deceased, and was sold at a probate sale. The notes taken at the sale were afterwards .partitioned between the widow (who subsequently married Graves) and the heirs of Stokes. An adjustment was afterwards effected by which the plaintiff and heirs were to take the cotton detained at sixty cents per pound, on a pro rata distribution among the holders of the cotton notes.

By this settlement another note of defendants to the estate was paid, and left a balance over of $148 87, to bo applied as a credit on the note sued upon.

We see nothing in the defense having the least weight. The plaintiff has fully made out her case, and judgment was properly rendered in her favor.

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


author: TatjIaeeeeo, J.

text:
    No. 1309.
    Alexander Walker v. Adelicia Acklen.
    t’laintiiT, in his petition, alleges an indebtedness by defendant in her own right, and as tutrix to her minor childron, but prays judgment against her, and has citation served on her only in her own right A judgment against her as tutrix will not be sustained.
    The judgment of the Court must conform to the vevdict of the jury.
    A PPEAL from the District Court, Parish of West Eeliciana, Cooley, J.

      Alexander Walker and W. P. Winter, and P. O. Labalt, for plaintiff and appellee.

      Wickliffe cb Miller, for defendant and appellant.
   TatjIaeeeeo, J.

The record of this suit presents proceedings so anomalous and irregular, that we find it impracticable to render a deoree in the case. The action is founded upon a joint contract. The petition alleges indebtedness by the defendant in her own right, and as tutrix of her minor children, and prays judgment against her in her own right alone. The defendant was not cited in her capacity of tutrix. Wo arc at a loss to know whether the jury intended to render their verdict against both the parties alleged against, or against one of them alone. The judgment, as written up, does not seem to be sustained by the verdict. We think the ends of justice require that the case should be remanded.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided. It is further ordered, that the case be remanded to the Court of the first instance to be proceeded with according to law, with leave to the parties to amend tlioir pleadings, the plaintiff and appellee paying costs of this appeal.

Rehearing refused.


author: Howei/d, J. IIowedd, ,T.

text:
    No. 1262.
    Wm. L. Hutchinson v. S. D. & H. Richardson.
    The iacb of defendant, being in the Confedera be service, and thus avoiding citation, does not interrupt prescription.
    A PPEAL from the District Court, Parish of St. Helena, Ellis, J.

      ■Tas. A. Williams, for plaintiff and appellee.

      Ti. F. Russell, for defendant and appellant.
    Reporter.-—This action was commenced in January, 1801, on ft promissory note which became due in January, 1859. Defendant pleaded (he proscription of five years. Plaintiff, in answer to this plea, produces testimony to show that defendant was in the Confederate army, and thus, by his own act, prevented the commencement of this action.
    The testimony is materially as follows :
    Witness Ellis says : “ I saw defendant in Camp Moore, in the latter part of 1861; he was captain of a company in the Ninth Louisiana Regiment. I know he was still in the service in 1862.”
    WitnessWelslisayB : “Defendant, Hardy Richardson, was post-quartermaster from,the latter part of 1863 to the surrender, in 1865.”
    It is admitted by defendants’counsel, that the Act of the Louisiana Legislature relative to proceedings against persons in the military or naval service of the State, or of the Confederate States, approved December 21st, 1861, was in force and recognized by the Courts as law, and as applying to this case.
   Howei/d, J.

This is an action upon a promissory note, duo on 12th January, 1859, against which the prescription of five years is pleaded by H. Richardson, against whom alone judgment was rendered.

He accepted service of the petition on the 10th January, I860, about seven years after the maturity of the note sued on, and there is no legal evidence in the record showing an interruption or suspension of the prescription pleaded.

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

Same Cake.—On Ai’m-joatton eor RionEARTNO.

IIowedd, ,T.

A rehearing is asked lor in this case, on the. ground that a motion to dismiss the appeal was not passed upon.

In the, application, it is admitted that said motion was notin the. record, but it was filed ; and, on referring to the clerk’s docket, wo find an entry of the filing- of a motion to dismiss, on 2d March, 1867, which motion, for the first time., comes to our knowledge on the application for a rehearing-.

The appeal was made returnable, and the transcript filed, on Monday, 25 th February, 1867. Court was held on each day of that week, except. Saturday, March 2d, when tlio motion was filed. More than three judicial days liad elapsed, and the motion, consequently, came too late. 17 A. 21. The ease was submitted on the 4th, upon the brief of counsel for defendant—no brief of plaintiff’s counsel or motion to dismiss coming- into the hands of tho Court—and tho caso decided on the -31th. Under those circumstances, we do not feel authorized to open the ease for the purpose of examining a motion to dismiss the, appeal.

Rehearing- refused.


author: Laratjvb, J,

text:
    No. 306.
    George H. Wiley v. Woodman & Bement.
    No jincb proo.ppdinff as a pipa in abatement--, or bar to tho action, is known to or vppoftimert by our law. T)ip oxppnlion ot a jud^mont pan bp. stayed only by minnption and bond.
    A 3’PEAL from the Bixtli District Court of Now Orleans, Howell, ,T.

      Race & Foster, for plaintiff and appellee.

      Emerson <0 JTunliia//on, for defendants and appellants.
   Laratjvb, J,

This suit was-bronght against the defendants, upon their acceptance of a draft, payable to the order of plaintiffs, for $500.

The defendants, for answer, pleaded a general denial and prayed for a judgment in their favor.

Tho Court below, after hearing tho evidence, gave judgment in favor of plaintiff, for $500, with interest and costs of suit and protest. No appeal was taken from that judgment.

But, subsequently, the defendants filed a document of tho following-tenor, and which they call a plea in bur :

“Now conic the defendants in tho above entitled suit, and to the Court aforesaid respectfully represent that tho plaintiff ought not further to prosecute tho same, or further to prosecute the writ of -fieri facias herein issued against tho defendants, because they say that the said plaintiff is an alien, horn and resident in foreign parts, to wit: the State of Missouri, ¡j,nd out of the allegiance of the State oí Louisiana and of tlie Confederate States of America, and within the allegiance of a foreign country and government, to wit: the country and Government of the United States of America, of which one Abraham Lincoln is President; and that said plaintiff, before and at the trial of the institution of said suit, was and now is inhabiting and residing in tho said United States of America. And respondents further say, that, after and since the issuing of said writ, a public war has been commenced and proclaimed, and is now carried on and waged between the said Confederate States, within which and under the allegiance of which defendants are and reside, and tho said United States of America and the Government thereof ; and that the said plaintiff is an enemy of said Government of tho Confederate States, and adhering to tho enemies thereof, all which resposdents are ready to verify ; and defendants also show that, since the issuing' of said wait, they have obtained a respite from their debts and creditors, by virtue of proceedings in the Sixth District Court of New Orleans, in the suit of Woodman & Bement v. Their Creditors, of which plaintiff had notice and was placed upon the bilan ; whereupon they pray judgment that all further proceedings and wait herein be stayed and qnasliod, and that the plaintiff and the sheriff of the parish of New. Orleans be ordered to stay all proceedings under said writ, until the plea now interposed shall be heard, and for general relief, etc. ”

On motion of defendants’ counsel, it was ordered by the Court below' that plaintiff show' cause on Monday, 23d April 1861, why the older prayed for should not be granted.

The plaintiff excepted to said rule, on the ground that judgment having been obtained and execution issued, the defendants cannot sot the same aside on exception, plea in abatement or rule, but only by injunction on giiv'.ng bond; that no such process or proceeding as that instituted by defendants is known under our law in such cases.

The Court below', after hearing counsel, sustained the exception of plaintiff and dismissed the rule or plea in bar filed by defendants, with costs.

The defendants appealed from that judgment.

IVe. are clearly of opinion that the District .Judge did not err. The appellants have not appeared in this Court to point out to us the law authorizing such proceedings as by them adopted to arrest the fieri facias or execution upon the judgment, and we are not aware of any laws under which said writ or execution could be arrested, except those regulating-injunctions, and requiring the party to state under oath the facts which, according- to his belief, render necessary, and to annex to his petition his bond in favor of defendant in injunction. C. P. Arts. 296, 304.

The appellee has asked for damages as for a frivolous appeal. We believe ho is entitled to them.

It is therefore ordered and decreed, that tho judgment appealed from be affirmed, with fifty dollars damages, and that the appellants pay all costs.

Howni/o, .T. recused.


author: Howekd, J.

text:
    No. 1257.
    E. Fendler v. Mary C. Daigre et als.
    Where a tubri.v, administering, acknowledges in her account that the heirs are her creditors, and it is evident that she is indebted to them. The judgment homologating the account cannot he annulled. But it may be reduced by the creditors, 'if they show that the whole sum allowed is nob due.
    The husband’s separate property, being adjudicated to the widow as a part of the community, tlie subsequent creditors of the widow cannot treat the adjudication as an absolute nullity.
    A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J.

      Burgess, Chaney <& Poor, for plaintiff and appellant.

      P. P. Greres and A. M. Bunn, lor defendant and appellee.
   Howekd, J.

On the 21st February, 1866, plaintiff instituted this suit against Mrs. Mary C. Daigre, individually, and as tutrix of her minor children, Mary E. Gilbert, A. and Lucie A. Daigre, and against the said three children, to obtain judgment in solido against and sot aside the probate proceedings and sales in the succession of Gilbert Daigre, deceased, resulting in a settlement between the said tutrix and minors, and to subject the property, transferred to or purchased by the latter in pursuance thereof, to the payment of a note and account held by plaintiff against the said Mrs. Daigre, on the grounds of fraud and collusion.

The petition sets forth that during the year 1862, plaintiff sold to Mrs. Daigre, for herself and her said children, various articles of jewelry amounting to $2,809 50, of which sum Mrs. Daigre paid $1,000, on 12th October, 1863, and gave her note due at twelve months for the balance, and that in October and November, 1865, he sold to them other merchandise amounting to $74 45; that at the dates of thefirst sales the defendants were wealthy, and the owners of a large amount of property; that for the purpose of concealing her property from the pursuit of her creditors the said Mrs. Daigre fraudulently acknowledged herself indebted as tutrix to her said children, about two thousand dollars, more than she really owed them, and caused judgment to bo rendered against herself in their favor for ninety-four thousand six hundred and thirty-six dollars and ninety-seven ■ cents, or $31,878 39 to each—whereas she did not owe them so much by $39,450, amount of the separate property of their father; that under said judgment defendants caused a large amount of property to be sold below its real value, and the proceeds, with other sums paid, exceeding by at least $1,000, her true indebtedness, applied to said judgment.

The three children excepted that no canse of action against them was shown; that no priority of contract, is pretended between plaintiff and exceptors, in the execution of the note sued on; that the record in the succession of their father, referred to by plaintiff, shows that their rights wore fixed and determined by the account filed by the tutrix on 21 st March, 1861, which was homologated by judgment of the Court—the portion falling to one of them, Mary E., wife of Yon Bhul, having been paid in full in January, 1861, and that, at all events, no action lies against them until recourse upon their mother is exhausted. These exceptions were overruled, and were renewed as a defense by all the defendants, with a general denial, and the averment that plaintiff cannot maintain his action, as the rights of the children were judicially ascertained prior to the origin of the debt on, which the suit is based. They further pleaded tlio prescription of one year, in bar of tlio action; but this plea is not urged in this Court.

Judgment was rendered against Mrs. Mary C. Daigre for the amount of the note sued on, and against plaintiff on his demand against the heirs, and ho has appealed.

There seem to be irregularities in the probate proceedings in the succession of Gilbert Daigre, deceased; but the evidence does not sustain the charge of fraud and collusion.

Tlio alleged fraud is stated to have its origin in the account filed by the tutrix on the 21st March, 1801, where no apparent motive existed for committing a fraud. By the authority cited by plaintiff, the judgment homologating this account cannot bo annulled, as it is evident the tutrix was indebted in a large amount to the heirs; but it may be reduced by her creditors, if they show that the whole sum allowed is not due. See 5 A. 715.

The record shows that the mother owed her children more than she has paid them by ton thousand dollars, the excess stated by plaintiff.

His suggestion that she could not have owed them as much as allowed by the amount of the husband’s separate property, which was included therein, cannot avail him in the form in which ho has brought his action, while the adjudication of that property, as well as the community property, to the widow is not sot aside, which he has not asked to be done, and while it stands undisturbed the judgment attacked is not erroneous in amount. The creditors or heirs of the deceased may complain of it, but plaintiff, who is a posterior creditor of the mother, cannot do so, unless the effect be such as to deprive him of some legal right upon his debtor’s property. . 1

But such effect is not shown, as by the act of adjudication the general mortgage of the minors was removed and a special mortgage granted on the plantation, which had belonged to the community, and which, when sold under that mortgage, did not yield as much as plaintiff' admits was duo the minors.

IVe are of opinion that the subsequent creditors of the mother and tutrix cannot treat the adjudication to her of the husband’s separate property as an absolute nullity, and deprive the heirs who do not complain of aE recourse against their mother for its value, which is adjudged to them by a formal judgment of Court. In this ease, whore plaintiff dealt with the mother, and to whom alone it is shown he gave credit, she was, so far as this record shows, the owner of all the property described in the inventory, and her only indebtedness was to two of the heirs, who it appears have not yet obtained from her the whole of that indebtedness.

As plaintiff has failed to make out a case against the heirs, and as he may be able in another form of action to show their liability, wo have concluded to change the judgment against him to one of nonsuit.

It is therefore ordered, that the judgment against plaintiff on his demand against Levoir Daigre, Gilbert Daigre and Mary E. Daigre, wife of Henry Yon Phul, be reversed, and that there be judgment against him thereon as of nonsuit; that the judgment against Mrs. Mary C. Daigre be affirmed, and that the costs of appeal be paid by the said Levoir, Gilbert and Mary E. Daigre, appellees.