author: F.tjstis, C. .1.

text:
    Police Jury of West Baton Rouge v. Michel et al.
    A fi. fa. issued from a district court andievied on property within the jurisdiction of another district court, may be enjoined by the latter.
    It being the duty of the police jury of each parish to provide a sufficient house for the courts land jurors, and a good and sufficient jail to receive and keep prisoners, where buildings have been thus provided by a parish for the State, andaré used and occupied for public purposes, they are not liable to seizure and sale under execution against the police jury.
    from the District Court of West Banton Rouge, Burk, J.

      Bennett, for the plaintiffs.

      Lacey, for the appellants.
   The judgment of the court was pronounced by

F.tjstis, C. .1.

The sheriff on an execution issued on a judgment obtained by the plaintiff, Jean Pierre Michel, against the police jury of West Baton Rouge, in the District Court held in the parish of Pointe Coupée, seized and was .proceeding to sell the courthouse and furniture, the clerk’s office and furniture, and the recorder’s office and jail ,of the parish of West Baton Rouge. An injunction’ was granted by the judge of the sixth judicial district against any further proceedings in relation to the property thus described, which was by judgment of the court made perpetual, and the defendants have appealed.

The defendants contend that the judgment on which the execution issued having been rendered by the District Court at Pointe Coupé-e, the District Court at Baton Rouge had no jurisdiction or authority to grantor maintain the injunction. This question we consider settled in .the case of Hobgood v. Brown, 2 An. 323, and the cases there cited..

It being the duty of the police juries of the several parishes to provide a sufficient house for the .courts of the State, with proper rooms for jurors, and a good and sufficient jail to receive and keep prisoners, it seems to us to follow that, when the buildings ar.e thus provided by a parish for the State, and .are used and occupied for public purposes, they are not liable to seizure and sale on execution against the corporation of the parish, under the principles laid down by this court in the case of Egerton v. The Third Municipality, 1 An. 435.

Judgment affirmed.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Hall et al., Syndics v. Woods.
    Where one who purchased, in his own name, slaves sold at a judicial sale, applies to the Probate Court, alleging that he bought them as an investment of funds of minors to whom he was under-tutor, and praying for a family-meeting to consider the propriety of adopting and confirming the purchase on behalf of the minors, and they recommend its adoption, and that the under-tutor be authorized to execute his notes for the credit part of the sale, and the deliberations are homologated and the under-tutor authorized to execute the acts, but, on the next day, be subscribes notes and consents to a mortgage in his own name, without mentioning these proceedings, the minors will not be bound thereby. Per Curiam: The purchase having been made by the party in bis own name, there was no contract to ratify; the alleged ratification was a sale from the underitutor to the minors; and article 1788 C. C. is inapplicable to such a ease.
    A minor will not bo bound by a purchase, though ratified by a family-meeting whose deliberations have been homologated by the court, where the purchase exceeds his available means, and instead of being an investment is a speculation which may involve him in debt and difficulty.
    from the District Court of West Baton Rouge, Burle, J.

      Phil-for the
    for the defendant.
   The of the court was pronounced by

Rost, J.

At the syndics’ sale of the property of the insolvent Ananias Eunhar, made on the 22d December, 1841, John Holmes purchased slaves for the aggregate sum of $12,110, payable one-tenth of the purchase money cash, and the balance on a credit of one, two and three years, with interest at the rate of ten per cent per annum, after the maturity of the respective instalments. Six days after the purchase he filed a petition in the Court of Probates’ alleging that he had purchased those slaves as under-tutor of the minor children of the insolvent, and as an investment of a portion of their rights in the succession of the late Jane Martin, their mother. He prayed that a family meeting be convened for the purpose of taking into consideration the propriety of adopting and confirming this purchase, in behalf of the minors. The prayer of the petition was that the under-tutor be authorized to give his notes in behalf of the minors for the slaves purchased, and that the said minors be bound thereby. On the 10th January, 1842, a family-meeting was convened, who declared that the purchase was for the best interests of the minors, and necessary for their maintenance and education. They recommended that it be accepted, and the under-tutor authorized to execute his notes as prayed for.

On the next day, the '.deliberations of the family-meeting were homologated ;by the court, and John Holmes was authorized to execute notes for the price of the slaves, in his capacity of under-tutor. On the following day, he subscribed-notes and consented to a mortgage in his own name, without making any mention of these proceedings. All the slaves purchased but one, were then delivered to the father and tutor of the minors, and haye remained in his possession ever since. No part of the price has been paid, and the plaintiffs now sue the defendant, who is one of the heirs of Jane Marlin, for her share of this indebtedness.

The defendant denies her liability, and pleads want of consideration. She further alleges : 1st. That John Holmes bought for his own use and benefit, and that the slaves became and have remained his property. 2d. That if he had purchased as under-tutor, the sale would be void for want of authority in an under-tutor to make such purchases. 3d. That the purchase could not be ratified by a subsequent family-meeting, and that, if it could be, the family-meeting relied on is illegal, null and void. On the issue thus formed, the District Court gave judgment in favor of the defendant, and the plaintiffs appealed.

John Holmes was authorized by the Court of Probates to execute notes for the price of the slaves purchased in his capacity of under-tutor; but he did not comply with the decree. Nothing shows that the notes sued upon were given in execution of it. The purchase having been made by him and in his own name, there was no contract to ratify. The alleged ratification was in fact a sale from the under-tutor to the minors. We are satisfied that art. 1788 C. C. is not applicable to a case like this, and that this sale was not susceptible of ratification.

But the record shows another fact, which entitles the defendant to relief. The amount of the purchase exceeded the available means of the minors, and brought them in debt to the syndics. Neither the family-meeting, nor the Court of Probates, appear to have enquired into the extent of those means. But they manifestly took it for granted that they were sufficient to pay the price. In the language of our predecessors, in the case of Darse v. Leaumont et al., 5 Rob. 287 : “ An investment of funds belonging to the minors was intended to be ratified, and not a speculation which might involve them in debt and difficulty.” We concur with the court in that case that, minors are not bound by such speculations.

It is alleged that the slaves are in the possession of the minors, who should have tendered them, before they can be permitted to repudiate the purchase. It does not appear that the defendant, after she became of age, received any of them from her father. She cannot therefore be required to return them. If it be true, as alleged on the other side, that the minors were supported and educated out of the hire and labor of those slaves, the under-tutor has his action for indemnity. We are of opinion that the plaintiffs have failed to show the stipulation pour auirui, under which they claim.

Judgment affirmed.


author: Rost, J;

text:
    Hall et al., Syndics v. Williams et al.
    from the District Court of West Baton Rouge, Burk, J.

      Phillips, for the appellants.

      Lacey, for the defendants.
   The judgment of the court was pronounced by

Rost, J;

This case is similar to that of the same plaintiffs against Woods, just determined, and, for the reasons therein given, it is ordered that the judgment be affirmed with costs.


author: Eustis, C. J.

text:
    Louis et al. v. Ricard et al.
    In an action for freedom a judgment rendered in a similar suit by a brother of plaintiff against the same defendants, establishing his freedom, on proof that his mother and grandmother were free long before the birth either ef plaintiff or his brother, is= not admissible in evidence. The1 judgment has not the force of res judicata as to the plaintiff, who was no party to it. The authority of the thing adjudged takes place' only with respect to what was the object of the judgment, which was the freedom of the brother.

      A judgment admitted to prove rem. ipsam establishes nothing more than that Such ajadgm'oh* was rendered.
    from the District Court ef Ibervrll, Perm, J.

      David, for the appellants.

      Labauve? for the defendants,
   The of the court was pronounced by

Eustis, C. J.

This is an action for the freedom of Jean Louis the son of Dauphine, both of whom are the plaintiffs ip this suit and who sue in formd pauperis. Dauphine is a mere nominal party. They were non-suited in the-District Court, and have appealed.

The district judge considered the evidence adduced not sufficient to support the action, and in this opinion We concur.

The plaintiffs offered in evidence a judgment of this1 court, r'endered^on the' 24th of May. 1847, by Which it was decided that Edward, a younger brother of the plaintiff Dauphine, was free, on the proof that the mother as well as the' grand-mother of Edward Were free' in the Islands of St. Domingo and Cuba long before the birth of either of the sons'. In that suit Edward and the present defendants were parties, but the judgment in favor of Edward is not res judicata in favor' of the present plaintiff Jean Louis, Who Was no party to it.

Article 2265 C. C. provides' that the authority of the thing adjudged takes place only with respect to what was the object of the judgment rendered. The object of the judgment rendered in the case of Edward was'his freedom, of which the freedom of his mother was the evidence. The judgment in that case was not admissible in evidence'in this; as it was offered and'received to prove rem ipsam, it establishes that such a judgment was rendered, and nothing more. Pothier; on the authority of Res Judicata, § 43. The testimony of the witnesses'is far from establishing the freedom of the plaintiff.

Judgment affirmed.


author: Eostxs, C. J.

text:
    Hepburn et al. v. Commissioners of the Exchange and Banking Company of New Orleans, et al.
    An act of the legislature authorizing the reduction of the stock of a bank to the amount paid in at a certain period, accepted by the stock holders, will exonerate the latter from any liability beyond the amount of tlie reduced stock, as to creditors who have become so since the reduction,

      The date of a bank note is no evidence, even against the bank, at the period at which it be* came the property of the holder; nor can a subsequent holder claim to be vested with the rights of the first holder, so as to consider the debt due to him as dating from the period of the original issue.
    Though the date of an ordinary written obligation to pay money is evidence of the date of the' origin of the debt, the rule does not apply to bank notes.
    Where the note of a bank is re-issued in the course of its daily business, the obligation of the’ bank is fixed by the re-issuing of the note; the date on its face is of no moment.
    from the Fifth 'District Court of New Orleans, Buchanan, J-

      Grymes, Sigur and Bonford, for the appellants.

      L. Pierce, for the commissioners.

      Livingston, Maybin, Jioselius, L. Janin, S. L. Johnson, Benjamin and Micou, for different stock holders.
   The judgment of the court was pronounced by

Eostxs, C. J.

In 1839, the legislature passed an act to relieve the banks of the State, which had incurred the forfeiture of their charters by a suspension of specie payment, from said forfeiture. In the act it is provided that such of tlxe banks as have not their capital stock paid in, may suspend the payment of the stock until the 1st day of February, 1841, and that the amount actually paid in at that period shall be deemed the capital stock of said banks, and they are hereby resti-ained from doing Business on any larger amount of capital under the rules pi'escribed by their chartei-. Act of the 14 th March, 1839, s. 2.

The charter of the Exchange and Banking Company was adjudged to be forfeited by a judgment of the late court of the Fii'st Judicial District, on the 15th of Mai'ch, 1842. The plaintiffs are holders of $34,710 of bank notes of this company, which came into their possession subsequent to January 1st, 1843, and the object of this suit is to make the original stock-holders, several of whom are made defendants, liable for the bank notes on which this action is brought.

It is admitted that the defendants have paid all the installments called in by the directors up to the time fixed by the act of 1839, to-wit: February 1st, 1841. Having thus contributed all they were bound to contribute to the capital as reduced by the act of 1839, the question presented is,'whether they are liable in the present case beyond that amount, by reason of their obligations resulting from their ownership of the stock. The district judge was of opinion' that they were not so liable, and gave judgment for the defendants. The plaintiffs have appealed.

The argument of this cause has been very elaborately prepared on both sides, and we have come to a conclusion which confines the subject within a very narrow compass, under the view presented by the district judge.

The first point to be ascertained is, as to the precise rights of the plaintiffs as the holders of bank notes which they have acquired since the forfeiture of the charter in March, 1842.

It is admitted that tlxe act of 1839 was accepted by the banks, and it is obvious that, as far as legislation and the consent of the bank can make that act binding and obligatory, it has become so to all its legal intents. It was held by the Supreme Court, in the case of Millaudon v. The Carrollton Bank, 3 Rob. 507, that the act of 1839 did not diminish any of the original liabilities of the stock holders, and that they still remained contingently liable for the full amount of their subscriptions; but, that for the purpose of banking, the capital stock as it stood reduced by that act was not to be changed, Although we have not been able to concur in this opinion of the Supreme Court as to the pricipal question which it decided, yet, so far as the opinion asserts the principle that the original liability of the stock holders to the creditors at that time was not impaired by that act, we concur in it. But we cannot continue in its extent their liability to subsequent creditors, Without denying the power of the legislature to reduce the capital of a bank, the bank itself consenting to the reduction. The capital of those institutions was frequently increased on their application, and we see no objection to its being diminished with their consent. The effect of the act of 1839, as limiting the capital of the banks, was considered in the case of Purton et al. v. The Carrollton Bank, 3 An. 31, and settled by the decision given.

Considering, therefore, the act of 1839 as fixing the amount of the capital of the bank to the amount paid in on the 1st February. 1841, as the defendants have paid their quotas up to that period, they are not liable to the creditors of the bank whose debts have been created since that period. Supposing them to remain under their original responsibility as stock holders to the creditors of the bank before the reduction of its capital, are the plaintiffs, by virtue of the bank notes which they hold, invested with the rights of such creditors.

A large proportion of these notes bear date in the year 1836, and it is contended by counsel that as to the origin of the debt itself the date is conclusive, and that there is no other mode of ascertaining when the notes were put in circulation except by referring to the dates. As the case is before us, the plaintiffs present themselves as the holders of the bank notes. Their dates are the only evidence of that of their origin; and the plaintiffs contend that the notes constitute a debt contracted by the bank in favor of the first holders, whose rights are vested in them.

By the third section of the act of 1839, the banks of New Orleans were bound to settle and pay the balances due each other every mondny morning in gold and silver, and once a month were to publish a statement of their circulation, deposits, &e. The Exchange Bank continued its banking business until March, 1842, when it ceased to redeem its notes, and up to that time received and paid them out daily without memorandum of date or amount, or any notice being taken of the date of the re-issue. In pursuance of the act of 1839, the banks made weekly settlements up to March, 1842, in which the notes of each bank received by the others were returned to the bank of issue, and the balance ascertained and settled by the check of the settling clerk ; the Exchange Bank accordingly received its own notes and paid them out without any alteration of dates.

However true it may be that in ordinary written obligations to pay money their date is evidence of the time of their origin, no authority has been shown which would justify its application to bank notes. They constituted the principal part of the currency at the time of the enactment of the laws concerning the banks of New Orleans.

Those laws were enacted under an emergency of great public embarrassment, in which the government of the State undertook to regulatd the currency as a measure required by the necessity of the occasion. Ttíe very fact of the notes being currency excludes the conclusion of their date ljqing material, and would defeat their uses as currency. No person would take a note as money if it were subject to the rules of pecuniary obligations, and subject like them to the laws of prescription. Indeed our Code has an express article ex-exempting bank notes from the operation of th© prescription applicable to notes Payable to order or to bearer. Article 3505.

Where the notes of a bank are re-issued in the course of its-daily business, the obligation of the bank- is fixed by the re-issuing of the note; the date on its face necessarily becomes a matter of no moment, and affords no index to the time of the origin of the obligation of the bank; and the legislation of 1839-and the action of the banks under it just noted, exclude any possible inference of the time of their issue of bank notes being deduced from their date.

It follows, therefore, that, the plaintiffs, having come into possession of the notes sued on subsequently to the 1st of January, 1843, there is no evidence of 'the notes being debts of the bank previous to the reduction of its capital under the law of 1839. That they were so originally the date imports, but once paid into bunk after the reduction of the capital they were extinguished, and- the obligation of the original stock holders could not be revived by their re-issae, the bank with, its reduced capital being, only bound by such re-issue.

These views we take to be in accordance with that in which the law considers bank notes according to the highest and best approved authorities. “ Bank notes,” says- Lord Mansfield, in the case of Miller v. Race, 1 Burrow’s Rep. 452, “ are not goods, not securities or documents for debts, nor are they so esteemed, but are treated as money—as cash, in the ordinary course and transaction of business-by the general sense of mankind, which gives them the credit and currency of money to all intents and purposes,” Keith v. Jones, 9 Johnson, 120. Judah v. Harris, 19 Id. 145.

We therefore concur with the district judge in the opinion that, the stock holders who are defendants in this case are not liable to the plaintiffs; and, such being our opinion, it becomes unnecessary to notice any of the other point» raised, in the defence. Judgment affirmedk


text:
    Packwood v. Dorsey.
    In tin action for thG~riander'of title to property judgment may be rendered ordbring tiie defendant to institute, within a certain-period, a suit to establish his pretensions to the pro perty, and this judgment, on-the failure of the defendant to comply with it, will stand to the plaintiff as a perpetual default of the defendant; but tbe court lias no power to fix a term within which the defendantmust set forth his title or institute suit, under the penalty of being forever after precluded from asserting his claims.
    PPEAL from the Fifth District Court of New Orleans, Buchanan, J<.

      A. Ilennen, for the plaintiff.
    This action is founded upon the law, Biffamari, Justinian Code, lib. 7, tit. 14,1, 5, and not upon Partida 3, t. 2, 1. 46 ; though the latter is a mere translation of the former. Such it is stated to be in 2 Elizondo’s .Practicia Universal Forense, p. 136, ed. 1787. Gregorio Lopez, in his commentary upon-the above law of the Partida, states that it has been derived from the same source. In fact it has been the law of all the nations of Europe where the civil law prevails. It is as old as the time of Azo, who wrote a century before the compilation of the Partidas, in 1242. Summa Azonis, p. 722, 726. It is true that this law originally referred only to cases of liberty, and gave the right to every freeman (;‘ ingenuus ”) to institute suit against any one defaming his “ status,” or rights to liberty. But it has been extonded by analogy to cases affecting real or immovable property; and every man in possession of real estate is enabled to institute this suit against another claiming any right or title to it. The form of conducting such suit may vary among the different nations of Europe, but the form of the petition, the manner of conducting the suit, and all the incidents connected with it, are copiously laid downinthe books of practice used in Spain. See 2 Elizondo, 135, 137. Paz, Praxis, tom. 3, p. 82, 84. Villadiego, p. 335, 387. Perez, tom. 1, p. 596. Preelectiones in Cod. lib. 7, tit. 14. Corvini Jurisprudentise Romanas Summarium, 510, in Cod. lib. 7, tit. 14. 4 Merlin's Répertoire, (verbo Diffamari) 586. Leyser, tom. 2, p. 138, specimen 81. Meditations ad Pandectas. 6 M-ulleri Promptuarium, p. 161, verbo. Provocado ex lege Diffamari. Voét, in Pand. lib. 5, tit. 1, nos. 21, 22. In the english courts of'chancery a remedy analogous to this of the civil law is found in their bills of .peace. 2 Story’s Eq. Jurisp., p. 174, 181, ss. 850, 860.
    The principles laid down by the civilians on this subject may be found in 2d Leyser, p. 142. “ * * * testanturque, D. D. tantum non omnes inhoc processu pro diffamante haberi, qui jus sibi alquod contra alterum asserit seu publicc hoc seu privatim fiat. Omnis ergo inquietado diffamatio est. Ita Barbosa in Thesauro, lib. 4, cap. 32, §3. Quoties, inquit, alicujus interest defendí famam, bona, possessionem, remedium L. Diffamari obtinet, ideo eomparatum, ut talia serventur ab omni inquietatione secura.” This action can be maintained although no injury has resulted from the act, the object being principally to quiet the title. “ Provocado ex L. Diffamari instituí potest, tametsi diffamatio injuriam nullam continent.” 6 Mulleri Promptuarium, p. 164, n. 10. “ Nam ut injuria diffamationi insit, necesse non est.” Leyser, Meditat. ad Pandect, -vol. 2, p. 139.
    Itis admitted that the common law remedy of an action for the slander of title does not go as far as the civilians have carried the above remedies. But the common law has no binding force on us. And though-the same be.true of the civil law, the principles-of the civilians are more conformable to natural law and reason, and more consonant with equity. And, if all the Spanish and civil law has been repealed, yet our courts are required, “incivil matters, when there is no express law, to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages where positive law is silent.” C. C. art. 21. Now .the usages of the civil law, as interpreted in Spain and other nations of Europe, have been generally received in Louisiana. And if we appeal to natural law and reason on this subject, there can be nothing inequitable in the manner of the proceedings which the civilians have pointed out for the redress of suchinjuries as those set forth in the plaintiff’s petition. Admitting that the roman and Spanish laws have been fully repealed, “ we presume,” says Judge Mathews, “ it cannot be viewed as ajudicial offence to resort to them in aid of interpretation.” Lewis v. Casanave, 6 La. 442. The same judge, afterwards in Boismare v. His Creditors, 8 La. 319, said that “ the repeal of these laws by the act of 1828 as laws .absolutely obligatory in the administration of justice ought not to destroy the force of principles which were established by them, when these principles are found to comport with justice.” And the court, in the judgment of the case, proceeded on a very rigorous positive law of Spain, to condemn the defendant as guilty of fraud, because by the Spanish law all insolvent debtors are presumed fraudulent.
    .To what extent the Spanish and roman laws were repealed by the act of 1S28 has not been precisely fixed by the decisions of the Supreme Court. Mathews, J-, in delivering the opiuion of the court, in 6 La.441, says of this repealing law; “ The clause of repeal is sweeping in its effects, tremendously sweeping ; and an unwise or inconsiderate interpretation on the part of the courts of justice would have left the community without any civil laws except those contained in the Louisiana Code and Code of Practice, an evil so great ns to be irreconcilable with the wisdom that must be conceded to our .legislature.”
    In the case of Carlin v. Slewart, 2 Rob. 76, cited by defendant’s counsel, the court considered it “useless to inquire whether the repeal of the civil laws extended to any other but statutory laws,” and the question of slander of title was not even hinted at, the suit relating simply to slander of the person. The ease of Caldwellv. Hennen, 5 La. 24, also cited by defendant’s counsel was the same in its method of proceeding as that of Heerman v. Livingston, 9 M. R. 656, and although instituted subsequently to the repealing act of 1828, neither the counsel nor the court called-in question the correctness and legality of the proceeding.
    The counsel for the defendant urges that the judgment in this case aasumes a legislative power of giving a prescription against the action of defendant. No such power was intended to be assumed by the court in this judgment. The defendant was indulged, inconsequence of his willingness and intention to institute a suit, with time for that purpose. The plaintiff might, with great propriety, complain that the judgment granted the defendant too much, as the action had already been pending against him nearly a year.
    It is clear that the suit which the defendant was ordered to institute, was that mentioned in the plaintiff’s petition, viz : that of his personal claim upon the property of the plainiiff. The judgment can have reference only to the plaintiff’s demand, and the defendant could not be compelled under it to do more than the plaintiffasked. The defendant was sued individually, and not as tutor of his children, and it was to preclude his individual action only, that the suit was instituted.
    To recover damages for a slander of title, proof of malice may be necessary. But that question cannot be brought up here, as no damages were given.
    In the case of Walden v. Peters, 2 Rob. 337, quoted by the defendant, tho court correctly remarks: “ The principal object of such a suit, according to the Spanish law from which we derive it, is to quiet titles, or to compel the defendant either to waive all right, or to institute a suit and thereby enable the plaintiff to make good his title. Whenever there is a waiver of title that object is attained. ■“ The object of the law,” says this court in the case of Livingstonv. Iieerman, was to protect possession; to give it the same advantages when disturbed by slander as by actual intrusion; to force the delamer to bring suit, and throw the burden on him of proving what he asserted.” 9 Mart. 714.

      Henderson and Prentiss, fortbe appellant. Thejudgment condemning defendant to institute suit within one month, or, in default thereof, tobe forever enjoined from making any pretension to the property in dispute, exceeds the power of the court. The fixing of a prescription toan action is a legislative, and not a judicial, function. The legislative and judicial powers are separated by the constitution. 'The 46th law, tit. 2, of the second Partida, on which this action is based, is repealed. See sec. 25 of the stat. of 1828. C. C. 3521. This law 46, even if in force, is confined to matters affecting personal rights, as where one person proclaimed another to be his slave, or defamed his character.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff, alleging himself to be the owner and in possession of a valuable plantation in the parish of Plaquemines, with the slaves thereunto belonging, complains that Grecnberry Dorsey has slandered his title by giving out to divers persons that he had an interest in said plantation and slaves, or that he had a right to a portion, or was part owner thereof. It is alleged that Dorsey had no right, title or interest in any portion of the plantation or slaves, and that the declarations thus made by said Dorsey were made maliciously, and for the purpose of disturbing the petitioner’s right of property and preventing his disposing of the same. The prayer of the petitioner is for the payment of $5,000, damages alleged to have been suffered by the acts of the defendant, and that the defendant be decreed to produce his titles, if any he have, in support of his claims to the said plantation and slaves, and to prosecute suit thereon to final judgment, and, in default thereof, that he be forever enjoined from setting up said claims or bringing an action thereon, and that the plaintiff be decreed to be the sole owner 'of the plantation and slaves, free from all claim on the part of said Dorsey. It concludes with asking for general relief. This petition was filed on the 24th February, 1846.

The defendant pleaded the general issue, and denied expressly that he had ever slandered the plaintiff’s title, but alleged that he had only taken measures to exercise his legal rights and claims to said property, as well in his individual ■capacity, as in,that of tutor of his minor children, and that he was about to institute legal proceedings against the plaintiff for the purpose of establishing his rights. He prayed to be hence dismissed, and also for general relief.

The cause was at issue on the 9th of March, 1846, and judgment was rendered on the 4th of March, 1847. The court, considering that the plaintiff had a right to have the doubts created by the defendant’s acts respecting his title to the property in question cleared up, gave judgment for the plaintiff, and decreed that the defendant be condemned, within one month from the date of the judgment, to institute the suit stated in his answer, or in default thereof that he be forever enjoined from making any claim to said property, and that the defendant pay costs.

It appears that, long after the term thus fixed for the institution of his suit, Dorsey filed his bill in chancery against Packwood, in the Circuit Court of the United States for this district, for the recovery of his interest in the plantation and slaves, and that Packwood has pleaded this judgment in bar of Dorsey’s right of action.

It becomes, therefore, necessary to decide on the validity of this judgment. This is an action of jactitation or slander of title. Actions of this sort have several times been recognized by the Supreme Court, since the repeal of the Spanish laws by the statute of 1828, and their utility in quieting titles and preventing the disturbance of owners by the putting forth unfounded claims to their property, we believe is unquestionable. In these cases the question has never been raised as to the power of the court to fix a term within which the defendant is compelled to set forth his title or institute his suit, under the penally of being forever after estopped from asserting his claims, the court having tried and decided the issue of title tendered by the defendants. It is to this part of the judgment of the District Court that the argument of counsel has, on both sides, been directed. ,,

It appears from the forms contained in the Spanish books of practice, referred to by the counsel for the plaintiff, that in Spain judges were in the habit of fixing a term within which a person setting up a title to property in the possession of another was bound to institute his suit, under the penalty of perpetual silence. Whether such a judgment was final in all cases, or whether there was any relief afforded against it, we do not find stated in the works referred to by counsel. It appears that these judgments rested for tneir legality upon no legislative sanction, nor any recognized principle of the civil law, but entirely on an extension of a law of the Code of Justinian known as the law Diffamari. By this law, whoever defamed the condition of a person born free, could be compelled to exhibit his proofs and make them good in a court of justice, and in default thereof be condemned to perpetual silence in relation to the slander. The dignity which the law attached to the condition of a roman citizen, and the protection which it threw over the personal rights of all those subject to its dominion, explain at once the purpose and policy of this salutary provision. It was in derogation of the general principle Invitus agere el acensare nemo cogalur, and was enacted in the interest of public order, and for the maintenance of public peace among the different .classes and races of the empire. An action was also given by a rescript of the Emperor Diocletian to a tutor, in case his former pupil had accused him of retaining the funds of the latter, in order to compel the pupil to institute his suit for an account.

Merlin says that the greater portion of the interpreters of this law, Diffamari, have extended it to slanders of the title of property, and to cases in which a party publicly claimed to be a creditor of another, and that this interpretation is in conformity with the spirit of the text. It must be admitted, however, he adds, that, “learned jurisconsults, such as President Favre, Henrys and Duperrier, have resisted with great force the extension of this law Diffamari.” In the text of the Spanish law, the singleness of the law Diffamari appears to have been adhered to, and the law not to have been extended beyond cases in which the character of the person, the status, or condition of the party, is assailed.

No person can be compelled against his will to sue another, unless in certain particular cases wherein the judge may by law oblige him to do it; as where a man publicly says another is his slave, or defames him in the presence of other persons. In these and other like cases, he who is defamed may petition the judge to oblige the defamer to bring a suit nnd prove what he said, or to retract or to make such reparation as the judge shall deem just. Partida 3, tit. 2, law 46. Gregorio Lopez in his commentary extends this law to disturbances of titles to property by slander.

This action being recognized as a part of our jurisprudence, are we bound, in the exercise of it, to all the incidents to which under the Spanish practice it was subjected? The repeal of the Spanish laws by the act of 1828 is an answer to this question. At the same time that we are at liberty to adopt any rule in furtherance of the object of the action, and not contrary to our own Code of Practice, which the experience of courts of the civil law has proved to be necessary, we cannot recognize a proceeding which has never been acted upon in our courts, and which is in direct conflict with principles we consider elementary. The law itself fixes the limitation within which actions can be brought. The power which is assumed in the decree appealed from .of fixing the term of one month within which Dorsey is compelled to bring his suit, under the penality of losing his right of action, is in direct conflict with the law of prescription.

We do not find that this practice of depriving the party of his right of action in default of bringing suit, which the Spanish courts impose, is followed in other countries in which the civil law prevails.

Merlin himself puts the question, whether the defamer after being condemned to perpeíuaLsi'lenceíin consequence of not having instituted his suit within the term fixed by the judge, can have relief against this sentence, and be permitted afterwards to assert his rights- Wassenaer. Sola and VoSt contend that he can, provided his demand in restitution be founded on aprobable cause, as on his ignorance, at the time of being condemned, of the existence of certain proofs and facts material to establish the justice of his claims. But in this opinion Merlin does not concur, and thinks it is founded on a practice peculiar to courts in Germany, and that the restitution in a case like this ought to be confined to those causes which authorize the “requite civile.”

Müller, in his Promptuarium, tit Provocatio ex lege Diffamari, s. 17, says that, if the defendant confesses the slander, and avers himself willing to institute ’his suit, duplez^ terminus saxonicus ei coneedi solet, sub posná perpetui silentii.

VoSt states that one citation is not sufficient to authorize the decree of perpetual silence. Two at least, and sometimes three or four are considered necessary, before the party is condemned on his default. Vogt ad Pandectas, lib. 5, tit. 1, s. 24. These discrepancies in the application of this extraordinary remedy result undoubtedly from the different modes of practice which prevail in different countries: but their existence shows the reluctance of courts in concluding a party for ever by fixing absolutely a term during which only his rights can be exercised, and a disposition to avoid such a result.

In the jurisprudence of France, we have found no case in which a decree of this kind has been rendered against a party.

It seems to us that it is impossible to cany out the law Diffamari in its extension to all cases as maintained by the Spanish writers, and the safest rule for us is to adhere to its original intendment and policy. In an action for the slander of title to property we see no reason why a judgment shounld not be rendered, ordering the defendent to institute his suit in order to establish his asserted pretensions to the property which he may set up. This judgment will stand to the plaintiff as a perpetual default of the defendant. But we know of no authority on the part of the court to fix any term, within which the party can be compelled to'assert his rights under the penalty of being deprived of them. There are cases in which we have allowed the debtor to become the actor in a suit, but we do not consider that those cases affect the question decided in this.

The action for damages to which every one who injures another in his person or estate is liable, will we believe continue to be, as it has been, a sufficient protection for property against slanderers of title. • No damages have been given by the judgment in this case, and none are asked in this court.

We have been referred by counsel to the proceedings in courts of Chancery on bills of peace, but we find nothing in them which supports the part of the decree to which our inquiries have been directed.

The judgment of the District Court so far as it condemns the defendant within one month from date to institute his suit against the plaintiff, or in default thereof to be forever enjoined from making any pretention to said property, we think unauthorized by law.

The judgment of the District Court is, therefore, avoided and reversed; and it is ordered that judgment be rendered for the plaintiff against the defendant, and that the defendant institute the suit by him mentioned in his answer, and pay the costs of this suit, the plaintiff paying the costs of this appeal.

        Hodie simplex. Vol. 6, p. 165, Editio Leipzig.


text:
    Galbraith et al. v. Davis.
    Where, under an agreement to sell merchandize, delivery is obtained by fraudulent pretences, the possessor acquires no interest that can enable a creditor of his, who seizes the property, to hold it against the true owner.
    APPEAL from the Fourth District Court of New Orleans, Strawbridga, J. The judgment of tbe lower court in this case, was in these words:
    “ Without recapitulating the facts it is sufficient to say that, in the cases of Gasquetv. Johnston, 2 La. 514, and Parmele v. McLaughlin, 9 La. 436, it has been fully settled that,under a sale of property where delivery has been obtained by fraudulent pretences no such interest passes as enables a seizing creditor to hold against the vendor. The same principle has been recognized in 3 La. 252, 15 La. 350, and is declared to be a rule of the common law, in 3 Kent’s Comm. 407. See also De Wolf’s case, in Mason’s Reports.
    “ To secure the payment of the purchase money in this case, Davis deposited with the intorvenor a receipt for a bill of lading for seventy-five tons of pork or bacon, lodged in the hands of Ferriday Co. Of the existence of this merchandize there is no other proof than the declaration of Davis; and from the testimony touching his actings and doings, I am of opinion it never did exist. If it did, the same proof shows that he diverted it from its destination, and disposed of it elsewhere; and in either case a fraud was perpetrated on the vendor. It is unnecessary to decide in whose possession the property attached was at the time of the seizure. It is, therefore, ordered that the property attached be restored to the intervenor, and that there be judgment in his favor, with costs.” The plaintiffs appealed.

      Frazer, for the appellants,
    cited 12 Pickering, 76, 81. 13 Ibid. 175. 2 Hall’s S. C. R. 587. 1 Greenleaf,378.

      Mott, on the same side.

      Preston, for the intervenor,
    relied on Ford v. Ford, 2 Mart. N. S. 574. 9 La. 436. 2 La. 514. 9 Rob. 525. Civ. Code, arts. 2433, 2463, 2464, 2539, 3190, 3196.
   The judgment of the court was pronounced by

Eustis, C. J.

For the reasons assigned by the district judge, it is ordered that the judgment of the court below be affirmed, with costs.


author: Slidell, J.

text:
    Landry v. Peterson et al.
    Where a slave sold on the 5th, .was found to be seriously ill of a typhus-fever on the 7th ef the month, of -which he died on the next day, the disease will be presumed to have existed at the time of the sale, in the absence of evidence that, though subsequently developed, it did not exist at that time. C. C. 2508.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Griffon, for the plaintiff.

      Peyton, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

The object of this action is to get back the price paid to defendants by the plaintiff, for a slave. The slave was bought on the 5th February, and was found to be sick on the afternoon of the 7th. A physician who was immediately called in, pronounced the disease typhus fever. The slave died on the morning of the 8th. The district judge decreed the restoration of the price, and the defendants appealed.

The district judge was satisfied upon the question of identity ; and, we think, his opinion was justified by the evidence. The appellants insist, however, that the disease did not exist before the sale ; and rely upon the testimony of witnesses who prove that the slave was apparently in good health on the day of the sale, and for some time previously. That the slave was seriously ill on ther 7th February, and died on the 8th, is proved. The buyer who institutes the redhibitory action must prove that the vice existed before the sale. But, in certain cases, the buyer is relieved by a legal presumption from the necessity of direct proof. “ If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.” Civil Code, 2508. But it is said by the defendants’ counsel that the presumption created by the Code is not a conclusive presumption, but one which merely shifts the burden of proof, and may be rebutted by the seller. We do not deem it necessary to decide the point; for, if that interpretation be correct, still the testimony adduced by the defendants is not of such a character as to satisfy the mind that the disease, although subsequently developed, did not exist before the sale. Judgment affirmed.


text:
    Allen, Executrix v. Wills et al.
    The object of the statute of 18 March, 1844, is to enable mechanics and other workmen eniployed by a contractor to obtain the benefit of any amount due to him by the proprietor.
    Where one who has contracted to ereíit a building, after having performedpart of the work; becomes unable to fulfil his contract, the proprietor, on his default, may proceed to complete the building; and, if the amount expended in its completion, and the damages to which the proprietor may be legally entitled in consequence of the default, do not equal the unpaid instalment stipulated for the work, the contractor will have, to tbe extent of the residue, a claim, ex aiquo ct bono, for his unpaid work. In the absence of evidence to the contrary, it will be presumed that the proprietor has been benefited to that extent.
    Where a proprietor paid to one with whom he had contracted for the erection of a building an instalment before it became due under the contract, and the contractor subsequently failed, and the proprietor finished the building for a sum not exceeding the next and last instalment, and the amount of the instalment so paid in advance, after deducting from it the damages recoverable under the contract, was enough to pay the mechanics and other workmen Who had notified the proprietor of their claims before tbe period at which the instalment so paid in advance became due, the proprietor will be responsible for the amount of their claims.
    A party will not be Hablo for costs where she deposits in c'ourt the amount actually due by her; but where she contends that she is liable only for fi sum less than the result of the litigation shows to have been due by her, she will be bound for the costs.
    Mechanics, laborers, and furnishers of materials employed by one who has contracted for the erection of a building, are only entitled to the same privilege as the contractor, and where the contractor has failed to register his contract as required by law, those employed by him have no privilege. Stat. 18 March, 1S44, s. 4. C. C. 2743, 2744, 2746,3239.
    from the Third District Court of New Orleans, J.
    for the appellant.

      Grivot, Davis, Sever, Race and Foster, for different defendants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff’s testator contracted with Wilis for the erection of a house for §7,900, to be paid in six instalments. The fifth instalment was made payable when the plastering should be completed. The house was to be finished and delivered on the 20th September, 1847, under a penalty of §50 per week during the delay. The house was never completed by Wills. He became insolvent, acknowledged his inability to proceed with the contract, and was formally put in default, on the 25th November, 1847. The plaintiff then proceeded to have the buildings finished at her own expense, which was accomplished on the 8th January. The plastering was not entirely finished until about the 1st December. The plaintiff, however, paid Wills the fifth instalment as early as the I6th November.

The principal question presented is, whether the appellees, three workmen who notified the plaintiff under the act of 1844 before the plastering was finished, can treat the payment as “anticipated” within the meanining of the law, and hold the plaintiff liable to them accordingly.

If Wills had continued the performance of the contract, and had not finished the plastering before the appellees notified their claims, the anticipated payment would clearly have been void, and against them. Has the plaintiff's been relieved from responsibility by the fact that Wills subsequently failed to perform the contract.

The object of the statute of 1844 was to enable the creditors of the con» tractor to obtain the1 benefit of any amount due to him' by the proprietor. If a contractor violate his contract after having done a portion of the work, his rights by reason of what he has done are not wholly gone. The- proprietor, upon his default, may proceed to complete the building, and if the sum expended in such completion; and the damages sustained by the' default and legally chargeable, do not absorb the unpaid instalments stipulated for the work, the contractor would have, to the extent of tlie residue, a claim, ex cequo et bono’,for his-unpaid work. In the absence of evidence to-the contrary, it would be-presumed that the proprietor had been- benefitted to that extent. In the present case, the plaintiff, after Wills’ default, finished the buildings at an expense not exceeding the sixth instalment. If, therefore, she had not paid the fifth instalment, she would have been bound to pay Wills the-amount of the fifth instalment,'deducting only such damages for the delay as were recoverable under the contract. What would have been the amount of those damages ?- Thejienalty stipulated in- case ef the failure to finish the house in September, was $50 a week, but this penalty did not begin to run until Wills was put in default ; for there was no stipulation in the contract that he should be deemed to be in- default by the mere fact of his failure to complete the building at the specified time. ■ See Civil Code 1905, 1927, 21-22. Rogron, 1230. Merlin, verbo, Peine Contractuelle, § 3. If’we deduct from the amount of the fifth instalment damages at the stipulated rate from' the date of the default to- the date of the completion of the building, it Would still leave a sum sufficient to cover the claims of the appellees. When the plaintiff paid the fifth instalment, the contract was in full force. Wills was not then in default. Under the contract the instalment was then due, and' tlie plaintiff paid in her own wrong. By having done so she is now empty handed; but if she had avoided doing what the law, in the interest of mechanics and laborers has forbidden, she would have had in hand, when the appellees gave their notice, a'fund sufficient to pay them, although at that time unascertained.

As, therefore, we believe the object of the law was to secure to the creditors1 of the contractor the' benefit of whatever the proprietor might justly owe him By reason of the undertaking, as the-plaintiff paid unseasonably, which the law’ forbids; and'as the appellees gave notice before the period-arrived when Wills' had a right to receive, the consequences of her imprudence must be borne by-her and not by the creditors.

The appellant complains that the costs of the suit were charged to her, and' that they ought to have been charged to the fund. If she hnd deposited in-court what she was bound to pay, she would have been entitled to such an ex-emption. But she alleged herself to be liable for only $281 50, and the result of the litigation shows her- to be liable-for a larger sum.

There was error in so much of the judgment as decreed a privilege in favor of the appellees. Under the act of 1844-, as well as under the Code, they are only entitled to the same privilege as-the contractor had. But Wills had no privilege, for his contract was not recorded". See act of 1844, s. 4. Civil Code, 2743, 2744, 2746, 3239. Taylor v. Crain, 16 La. 292. They must rank as ordinary creditors of the succession.

It is, therefore, decreed that so much of the judgment of the District Court as grants the appellees a privilege be reversed; and that, in other respects, the said judgment be affirmed; the said appellees James McQuaid, A. Curtis and Robert Daley paying the costs of this appeal.


text:
    Lobdell v. Clark.
    The acta .of Congress passed for adjusting land titles within the Territory of Orleans and District of Louisiana, expressly provide that if claimants shall neglect to give notice of their claims, in writing, to the proper officers, or to -cause the written evidence of them to be recorded, all their right, so far as derived from the first and second sections of'the stat. of 2 Mareh, 1805, shall .become void -and be forever thereafter barred; nor-shall any-incomplete grant, warrant, order of survey, deed of .conveyance or other written evidence, which shall not be so recorded, be considered, or admitted in evidence, in any-court of the United States, against any grant derived from the United States. This is not a mere rule of evidence binding only on the courts of the United States. It is a rule of property.
    An order of survey-obtained prior to the 1 October, 1806, though the land was actually inhabited and cultivated, had -not, under the act of Congress of 2 March, 1805, relative to titles to lands ,in.the Territory of .Orleans and District of Louisiana,.amended by sec. 1 of.the stat. of 3 March, 1807, the effect of a complete title conferring on the grantee absolute ownership, and exempting it from the necessity of being recorded as required by sec. 4 of the stat. of 1805. The exemption only exists in favor of complete french and Spanish grants.
    No title passed from the french and Spanish sovereign for lands in the Territory of Orleans and District of Louisiana by a mere order of survey ; until a patent issued, all inchoate grants remained within the discretion of the grantor; and they were not changed in then-character by the .treaty by which Louisiana was acquired, that .treaty imposing on the government of the United States only a political obligation to, perfect them, which cannot be enforced by any action of the judicial tribunals.
    ñ-om the District Court of West Baton Rouge, Nicholls, J..

      Lobdell, plaintiff, pro se.

      Elam and Robertson, for the appellants.
   T.he judgment of the court was pronounced by

Rost, J.

This is a petitory action founded on a patent .issued on the certificate of purchase of .t.wo preemption rights. The defendant resists the claim, and alleges that he is the owner of the land covered by the patent, by virtue of an order of survey granted in 1798, under which he alleges that the land has been occupied and cultivated by Jose Matteo ligarte, and those who claim under him, down to the present time. There was judgment against him, and he appealed.

The evidence leaves it extremely doubtful whether the claim of the defendant covers any of the land patented to the plaintiff’s vendor. But if it did, .it rests upon an incomplete grant, which is not shown to have been presented for confirmation, or recorded, as required by the various acts of Congress passed for ascertaining and adjusting titles and claims to land within the territory of Orleans. Those acts expressly provide that if claimants shall neglect to give notice of their claims in writing to the proper officers, or to cause to be recorded the written evidence of them, all them right, so far as the same is derived from the two -first sections of the act of 1805, shall become void,and forever thereafter be barred ; nor shall any incomplete grant, warrant, order of survey, deed of conveyance or other written evidence, which shall not be recorded as above directed, -ever after he considered or admitted as evidence in any court of the United States, against any grant derived from the United States. Land Laws, pp. 520, 548.

The defendant contends that, by the first sectiop of the act of 1805, amended by the first section oí the act of 1807, an order of survey, obtained prior to the first day of October, 1800, where the land was actually inhabited and cultivated, had the effect of a complete title ; that it conferred on the grantee absolute ownership, and was not required to be recor-ded under the fourth section of the act of 1805. If this construction of the acts of Congress was correct, it would not avail the defendant, because he has failed to show that the land claimed was actually inhabited and cultivated by the grantee, or by any person for him; the occasional possessions he has shown, being totally unconnected with the order of survey under which he claims. But we are satisfied that the exception contended for, only exists in favor of complete french and Spanish grants.

It is further alleged that, the right of the defendant to the land, is secured by the treaty of cession, and could nót have been taken away by an act of Congress. This argument takes for granted that the title passed from the sovereign under an order of survey, even when there was no actual settlement and cultivation. But it has been settled by the highest judicial authority that such was not the effect of inchoate grants; that until the patent issued, they remained within the discretion of the grantor; and that they were not changed in their character by the treaty by which Louisiana was acquired ; that this treaty imposed upon the government of the United States only a political obligation to perfect them; and that this obligation, sacred as it may be, cannot be enforced by any action of the judicial tribunal. Chouteau v. Eckhart, 2 Howard, 344, United States v. Wiggins, 14 Peters, 330. Pontalba v. Copland, 3 An. 86.

It is urged on the authority of Murdock v. Gurley, 5 Rob. 457, that the penalty imposed by the acts of Congress is a mere rule of evidence binding only upon the courts of the United States. We cannot view it in that light, considering, as we do, orders of survey, unattended with actual settlement and cultivation, as mere equitable claims, under which no title passed. It is undoubtedly a rule of property. Since the treaty of cession, the United States have acted uniformly upon that class of claims by legislation, and their right to prescribe the mode and the time, by and during which, they might be ripened into perfect titles, cannot now be doubted.

After extending again and again the time allowed to make proof of inchoate grants, and complying fully with the political obligation imposed upon them by the treaty of cession, the land in controversy has remained vacant, and they have granted it to the plaintiff’s vendor, with the solemn pledge that he should not be disturbed by any inchoate grant not previously made known to the proper authority. We must hold this grant to be the paramount and better title.

The chain of titles of the plaintiff ascends to the patent, which issued directly in Millaudon’s name, as purchaser off the settlement rights of Jones and Bunker. This appears to us sufficient in a case where Jones and Bunker are not parties. Judgment affirmed.


author: King, J.

text:
    Succession of Serret.
    A demand against a surviving husband for ail amount due to the succession of liis wife, received by the former from sales of the separate property of the wife during marriage, cannot be cumulated with proceedings for the liquidation and partition of the succession. To cumulate such proceedings would be irregular, and tend to embarrass judicial proceedings. The demand must be made by a separate action.

      from the District Court of West Baton Rouge, Nicholls, J.

      La~ bauve, for the appellant.

      Bennett and Herron, contrá.
   The of the court was pronounced by

King, J.

The administrator of Henrietta Serret, deceased, with a view to a final liquidation and partition of her succession, presented to the Probate court, as it formerly existed, a tableau exhibiting the debts of the estate, the balance remaining for partition, and the share falling to each of the heirs. The amount due to the succession by Hypolite Hebert, surviving husband of the deceased, arising from sales of the separate property of the wife during the marriage, was also set forth. This tableau was accompanied by a petition, in which the administrator prayed, that the heii’s of the deceased, and Hypolite Hébert, in his own right, as surviving partner, and as tutor to his minor child, also an heir, be cited to show cause why the liquidation and partition should not be made the judgment of the court, tie also prayed that Hypolite Hébert be condemned to pay the sum which he appeared by the settlement to owe, and that the administrator be authorized to distribute the sum, when collected, among the heirs, in the .manner proposed in the partition. The heirs, in their answer, admit the tableau tobe correct, and unite in the prayer for its homologation.

Hébert excepted to the jurisdiction of the Probate court, avering that the question of his indebtedness could only be determined by a court of ordinary jurisdiction, and that it could not be cumulated with a proceeding for a liquidation and partition of the succession, to which the administrator and heirs could alone be made parties. The exception was still pending when our present judicial system went into operation, and the cause was transferred to the District .court. The judge sustained the exception, and dismissed the action against Hébert. The administrator.has appealed.

The defendant cannot complain that he is called into a proceeding having for its object the final liquidation of the succession. As the tutor of one of the heirs, and as the surviving partner of the community, he was properly made a party. Indeed we do not understand his exception to extend beyond the competency of the court to inquire into his indebtedness.

But as far as relates to the demand against him individually for the price of dotal property of the wife alienated during the marriage, which he is alleged to have received and appropriated to his own uses, the action is one of the administrator against him to coerce the payment of a sum of money for distribution among the heirs. The ascertainment of the fact of his indebtedness arising from this cause, does not depend upon the liquidation and partition, but may be determined in a separate action. The defendant stands in the attitude of any other debtor, and it is obvious that the cumulation of a suit against the heirs for a settlement and partition, with actions against debtors for payment, is irregular, and that its tendency is to embarrass judicial proceedings. Although the District court, as at present organized, had jurisdiction of all the matters involved in the-proceeding, it did not, in our opinion, err in driving the administrator to his separate action against the defendant.

Judgment affirmed.


author: SniDEim, J.

text:
    Preston, Executor v. Christin et al.
    Where a party is placed on the tablean of distribution of the effects of a succession as a creditor for a certain sum, and the tableau is homologated, the homologation of the tablean is a judgment in favor of the creditor, which, so far as the succession is concerned, cannot be prescribed by less than thirty years.
    by the defendants from a judgment of the District Court of Iberville, Nickvlls, J.

      J. M. Jones and R. A. Upton, for the plaintiff.

      Labauve, for the appellants.
   The judgment of the court was pronounced by

SniDEim, J.

The defendants, administrators of the succession of■Bahamonda, filed a tableau of distribution in the year 1833, in which, after stating the debts and assetts, they exhibited a balance of a certain sum to be divided among the heirs. Upon this tableau Layton was recognized as a mortgage creditor for $1,700, with ten per cent interest. The allowance of'interest was opposed ; and this opposition having been sustained the tableau was finally homologated, thus leaving Layton a mortgage creditor for $1,700. For this amount the present action is brought, and the prayer of the petition is for a joint judgment against the defendants personally and in their capacity of administrators, for the sum of $1,700, with interest from the date of homologation.

This action was not brought until 1848, and the defendants contend that they are protected by the prescription of ten years. The homologation of the tableau was a judgment in favor of Layton, whieh, so far as the succession was concerned, was not prescriptible by less than thirty years. W.e cannot perceive how the defendants can be permitted to invoke a shorter prescription, while they remained the official representatives of the succession and had obtained no judicial discharge.

The defendants say that, in point of fact, they had not received the funds to pay the plaintiff. If they did not, it was their own fault. Their wives bought a large portion of the property of the succession, and the defendants, if they chose to deliver them the property sold without receiving its price, did so at their own risk.

The defendants claim credit for various alleged payments. The only payment which we consider proved is one made by the delivery of a quantity of sugar to Layton. The jury appears to have allowed for this a credit of $540. The application of the appellee to strike off this credit comes too late. An answer to the appeal, praying for an amendment with regard to another item, was seasonably filed by the plaintiff. In that answer the plaintiff expressly acknowledged that the only error in the judgment of the court below was with regard to the item then specified. The supplemental answer to the appeal, which lie afterwards prayed leave to file, was inconsistent with the first answer, and was also inadmissible under the 890th article of the Code of Practice.

, We think the jury improperly allowed a credit for $580, for an amount which the defendants contend had been collected by the plaintiff’s agent from ike estate of Guidry. Davis, who received that sum is proved to have received it in his capacity of administrator of Guidry’s estate; but there is no proof that, as administrator, he was authorized to pay, or ever did pay, it to Layton; or that he ceased to hold it as administrator, and held it as Layton’s agent.

The plaintiff is entitled to interest from the date at which the defendants were put in default.

It is, therefore, decreed that the judgment be reversed, and that the plaintiff recover of the said defendants, Auguste CJvristin and Valery Buplessis, the sum of $1080, with interest from the 16th August, 1842, and costs in both courts.


text:
    Marionneaux v. Edwards.
    Where a party interrogated on facts and articles in relation to a verbal contract to transfer real estate denies th'e contract, her answer cannot be contradicted by parol evidence; nor is parol evidence admissible to prove such a contract, in an action to recover damages for a breach of it. '
    from the District Court of Iberville, Penn, J.-

      Beblieux, for the appellant.

      Edwards, pro se.

   The judgment of the court was pronounced by

Rost, J.

This suit was brought to recover damages for the alleged breach of a contract to transfer real estate. The petition sets forth that, on the 18th July, 1845, a tract of land of six arpents front by forty in depth, lying in the rear of the plantations of the plaintiff and defendant, was sold at probate sale, and that the defendant had agreed with plaintiff to purchase the land in his own name, and, when the plaintiff was ready and willing, the defendant was to transfer and sell to him the land lying in the rear of his plantation, at the same price per arpent at Which the whole tract should be purchased; that the defendant did buy the land, but when called upon to comply with his contract refused to do' so, in consequence of which refusal the plaintiff alleges he has sustained the damages claimed. The defendant denied all the allegations of the petition, aud pleaded the prescription of one year in bar of the action. There was judgment as of non-suit, and the plaintiff appealed.

The contract alleged in the petition not having been reduced to writing, the plaintiff interrogated the defendant on oath in relation to it, under article 2255, C. C. The answers of the defendant, though perhaps not in all respects satisfactory, negative the contract alleged, and the plaintiff offered witnesses to disprove them and to substantiate his allegations. This testimony having been objected to and rejected, the plaintiff took a bill.of exceptions.

We are of opinion that the district judge did not err. When a party interrogated upon facts and articles in relation to a verbal contract to transfer real estate denies the contract, his answers cannot be contradicted by parol evidence; nor is parol evidence admissible to prove such a contract in an action of damages for a breach of it. Bach v. Hall, 3 La. 116. Bauduc v. Conrey, 10 Rob. 466. Breed v. Guay, 10 Rob. 35. Patterson v. Bloss et al., 4 La. 374.

The plaintiff having failed to make out his case, it is unnecessary to notice the plea of prescription. Judgment affirmed.


text:
    Leftwich et al. v. Brown.
    One who parchases the right of action of a minor against his tutor, can acquire no greater right against the latter than his assignor had ; and the tutor may make the same defence to the action, and avail himself of the same means as though the suit were brought by the pupil himself; and if the defendant has become the creditor of his pupil by any advances made to him since his majority, and previous to the purchase by the plaintiff, he will be entitled to set them up in defence to the action.
    The object of art. 2622 C. 0. which provides that, “be against whom a litigious right has been transferred may get himself released by paying to the transferee the real price of the transfer, with interest from its date,” is to prevent unnecessary litigation. But where a defendant, instead of paying the price for which the right was transferred, and thereby putting an end to the litigation, continues to contest the suit, opposes the plaintiff’s right to recover, and protracts the litigation, he defeats the very object of the law, and cannot avail himself of the provision established in his favor.
    A PPEAL from the District Court of Iberville, Nicholls, J.

      J. M. Jones, for the plaiutiifs.

      Dehlieux, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

Ou the 27th May, 1847, Walter Brown, for the consideration of the sum of $550, acknowledged to have been received by him, assigned to the plaintiffs all his rights and actions against the defendant, his former tutor* The assignment purports that those rights and actions were pending in a suit then existing in the court of the sixth district, for the parish of Iberville. Under this assignment the plaintiffs instituted their suit against the defendant for an account of his tutorship of Walter Brown, and claim judgment against him for the sum of $1,949, with interest, &c. The defendant in his answer sets up various charges against the assignor, Walter Brown, his former pupil, ail of which accrued previous to the assignment to the plaintiffs. The District court gave judgment for the sum of $1,445 35, with interest from the 1st March, 1825, and a legal mortgage on the property of the defendant. The defendant has appealed. The plaintiffs have remitted the interest accruing previous to January 1st, 1845, the day of the majority of Walter Brown.

On the trial of the cause a bill of exceptions was taken to a decision of the court refusing to receive evidence of certain matters set up in the defendant’s answer, on the ground that such matters could not be pleaded in compensation, on account of their being unliquidated, nor set up in reconvention against the' demand of the plaintiffs. We are of opinion that the plaintiffs, by their purchase, have acquired no greater rights against the defendant than their assignor, Walter Brown, had at the time it was made, and that the defendant can make in this suit the same defence, and avail himself of the same means, as he could if the suit were brought by Walter Brown himself. The action is one of account for the tutorship, and if the defendant has become the creditor of his former pupil by any advances to him since his majority, it is clear that he has diminished his debt for so much. The separation of the debt resulting from the tutorship from that contracted since, according to the opinion of the district judge, we think inadmissible. The accounts between Walter Brown and the defendant up to the time of the purchase of his right by the plaintiffs, which are all equally unliquidated, must be settled, and the balance is due by the! defondant to the plaintiffs. 12 Duranton, Droit Framjais, 598, 599. 7 Toullier, 392. We think the court erred in refusing to admit the evidence offered as stated in the bill of exceptions.

But the defendant pleaded that the assignment of his right and action by Walter Brown to the plaintiffs, was the sale of a litigious right,and that he must be released by paying to the plaintiffs the price they paid, with interest, under, article 2622 of the Code. The defendant insists on his right to have the benefit of this plea in the final judgment to be rendered, and that in no event can he be adjudged to pay a larger sum than the plaintiffs’ paid for the claim against him.

The laws Per diversas and Ab Anastasio, C. mandati, on which the articles of our Code concerning litigious rights are founded, have no other object than the prevention of unnecessary litigation, which is attained in a great measure by the check they impose on the cupidity of speculators in law suits. They enable the defendant to take the place of the purchaser of the suit against him, by paying the price he has paid for it, with interest. Thereby the litigation is ended, and the object of the law attained. But if, as the defendant has done in this case, he continues to contest the suit, raises difficulties as to the right of the plaintiff to recover his debt and protracts the litigation, he evidently defeats the very object of the law, and cannot avail himself of the provision which the law has established in his favor for the purpose of terminating litigation. To permit him to do it, would be to defeat the vary object of the law. Pothier, Contrat de Vente, 596, 597. Merlin, Rep. Verbis Droit litigeux.

It is, therefore, ordered that the judgment of the District Court be reversed, and that the cause be remanded for further proceedings, with instructions to the district judge to receive the evidence offered by the defendant as set forth in'his bill of exceptions, and that the plaintiffs pay the costs ef this appeal.


author: Sdidedl, J.

text:
    Ex parte Powers et al.
    A mandamus will not be granted, to compel a judge of a District Coutt, in the trial of a rule to show canse why a party should not be punished for a contempt, to allow defendant to except to the admission of testimony and to his refusal to permit the evidence to be reduced to writing, nor to compel him to allow an appeal.
    APPLICATION for a mandamus to the First District Court of New Or. leans, McHenry, J. In this case the counsel of Powers and others, presented the following petition:
    “ To the Honorable the Judges of the Supreme Court of the State of Louisiana.—The petition of William Powers, ' William Lennox, alias Scotch Bill, and John Reese, alias English Jack, respectfully represents : That a certain John Duggan presented a petition against your petitioners and others, in the First District Court of the city of New Orleans, whereof John McHenry, Esq. is the judge, alleging that your petitioners had violated a privilege of which the said Duggan pretends to be the' owner, and which, as he avers, gives him the exclusive right of keeping a ferry and of carrying passengers for hire between the first and second wards of the second municipality, and the right bank of the river Mississippi, and which privilege the said Duggan
      pretends that your petitioners have violated, and applied for an injunction, restraining petitioners from violating the aforesaid pretended exclusive right, which injunction was granted, as the whole will more fully appear from the copy of the petition and orderof injunction hereto annexed.
    “ Petitioners further aver that on mond'ay, the 29th January, 1849, the said Duggan appeared in the said First District Court by J. O. Sever, Esq., his counsel, and having filed an affidavit setting forth that petitioners had violated the injunction, moved that they show cause on the next day, the 30th of January, at 10 o’clock a. m. why they should notbe punished for a contempt of the authority of said District Court and the disregard of its mandate, as per copy of said motion hereto annexed will more fully appear.
    “Your petitioners further show, that on the trial of said motion, after peth tioners had answered the same, denying under oath the’facts set forth in Duggan’s affidavit, the said judge permitted said Duggan te be sworn and examined as a general witness notwithstanding his interest in the cause, and notwithstanding the- opposition made to his competency by the counsel of your petitioners; that the said judge also refused said counsel of your petitioners to take a bill of exception to the admission-of said testimony, and to have all: the testimony in the-cause reduced to writing; and proceeded to give judgment; condemning petitioners to five days imprisonment, upon the sole testimony of the aforesaid Duggan, and without regard to the evidence adduced by your petitioners.
    “ Petitioners further show, that the said judge forthwith ordered your petitioners to be taken into custody, and that they are now in actual- confinement,, although they, immediately after the delivery of the opinion of the court,applied to the aforesaid judge to allow them an appeal- to this honorable court, which appeal the judge refused.
    “ In consideration of the premises petitioners pray that this honorable court will grant them a writ of mandamus requiring the Honorable John McHenry, judge of the First District Court of New Orleans, to show cause why he should not allow petitioners to except to the admission of the testimony of Duggan,- and his refusal- to permit the testimony taken on -the trial of the aforesaid motion' to be taken- down by the clerk of the court, and to compel him to grant petitioners an appeal from his aforesaid judgment. And your petitioners protesting that the said judgment is illegal and erroneous, and does them irreparable-injury, further pray for general relief, &c.
    “Schmidt, of counsel.”
    The petition was accompanied by an affidavit of counsel, that the facts-stated therein are true, and with a copy of the petition for an injunction, and> of the rule on Powers et al. to show cause why they should not be punished-for a contempt.
   The judgment of the court was pronounced by

Sdidedl, J.

It is ordered that the application for a mandamus be refused,no case being exhibited for the interposition of the court.


text:
    Dorsey v. Hills.
    A judgment prepared and signed by the judge in vacation, in a case in which no decreo could be rendered at chambers, has no effect until entered upon the records at the ensuing íerm (C. P. 543, 544); and an appeal may be obtained, on motion, at that term. Stat. of 22 March, 1843.
    Working animals may be seized separately from the plantation to .which they are attached, when the debtor himself points them out to the sheriff for seizure. Under such circumstances the debtor cannot afterwards object to the seizure.
    Where in a petition to enjoin a sale, specific objections are made to the manner of advertizing it, evidence will be inadmissible to establish other irregularities. The proof should be confined to jhe objections specified.
    An injunction will not be dissolved where the facts show that the party will be immediately entitled to resort to the same remedy; bnt finch facts must appear on the face of the proceedings,.or .from evidence legally admitted, orreceived without objection.
    from the District Court of Carroll, Curry, J.

      Browder, for the appellant.
    No counsel appeared for the plaintiff.
   The judgment of the court was pronounced by

King, J.

A motion has been made to dismiss the appeal in this case, on the ground that it was taken by motion in open court at a time subsequent to that at which the judgment was rendered. Acts of 1843, p. 40.

It appears that the cause was tried at the November term of 1844, but was not then determined. After the adjournment of the court the judge prepared and signed a decree, which was not spread upon the minutes until the next ensuing term, in April, 1845, when a motion for a new trial was made, which being over-ruled, an appeal was taken by motion. The judge could render no judgment in a contestation of this kind at chambers, and the decree signed by him during vacation acquired no force as such until it was entered upon the records. C. P. 543, 544. At the time when this was done, the appeal was taken by motion. The appellant was within the provisions of the act of 1843. The motion to dismiss is therefore overruled.

Upon the merits, the plaintiff enjoined the execution of a writ of fieri facias on two grounds: 1st. That the advertizement of the property was illegal, because made by a person not authorized to perform the act, and because the property was not described with sufficient accuracy; and 2d. Because the judgment on which the writ issued should have been credited with a sum of $300 paid on account.

The objection to the authority of the person who advertized the sale was unfounded. The advertizements were made and posted up by the sheriff. The property seized is described in the advertizements as twelve good work horses. This description was held by the judge to be sufficient, and we concur in opinion with him, there being no evidence showing that they possessed qualities which required a more specific designation.

The district judge also considered that the plaintiff had failed to prove the alleged credit,and his conclusion is supported by the record. But he sustained the injunction on two grounds not urged in the plaintiff’s petition, viz: 1st. That working animals can not be seized separately from the plantation to which they are attached. 2d. That the advertizements were all posted up in the same village, and not at three different poiots in the parish.

As regards the first ground, it appears to have' escaped the district judge that the plaintiff himself pointed out to the sheriff the property seized, and could not therefore have made the objection to the legality of the seizure which has been urged in his behalf.

The evidence in relation to the second ground was objected to, and a billl of exceptions taken to the opinion of the judge receiving it. The evidence was clearly inadmissible under the pleadings. The specific objection to the advertizements were, that they were not made by a duly authorized officer, and that the description of the property was indefinite. To those allegations the proofs should have been confined. Landry v. Leglise, 3 La. 219. No complaint was made that they had not been posted up at the proper placés. It is true that courts will not dissolve injunctions when the facts show that the party would be immediately entitled to resort to the same remedy. But such facts must appear upon the face of the proceedings, or from evidence legally admitted under the pleadings, or received without objection. If the ground assumed by the judge had been taken by the plaintiff originally, it is obvious that the defendant could have remedied the defect by giving to the sale the publicity which it is contended that the law requires. The defendant has been unnecessarily impeded in the execution of his judgment, and we think that he is entitled to the damages claimed.

The judgment of the District Court is therefore reversed, and it is ordained that the injunction issued in the case be discharged, and that the defendant Hills recover from the plaintiff Zachariah H. Dorsey, and his surety, Thomas V, Davis, in solido, the sum of $87 34, as damages, being twenty per cent on the amount of the judgment enjoined. It is further ordered that the plaintiff pay the costs of, both courts.


text:
    Powell v. McKee.
    Where a creditor fraudulently obtains possession, in another State, of the property of his debtor, who resided there, and brings it clandestinely into this State, without the consent or knowledge of the debtor, and immediately attaches it, the attachment will be dissoved. The fraudulent act of the plaintiff cannot give jurisdiction to our courts.
    from the District Court o'f Madison, Curry, J.

      A. Pierse, for the appellant.

      J. Dunlap, for the defendant.
   The of the court was pronounced by

King, J.

This suit was commenced by an attachment, under which three slaves and a wagon belonging to the defendant, who was an absentee, were seized. The attachment was dissolved, and the plaintiff has appealed.

The evidence shows conclusively, that the plaintiff obtained fraudulent possession of the property attached, in the State of Mississippi, Where the defendant resided, and clandestinely removed it to this State, without the consent or knowledge of the defendant, and immediately instituted the present proceedings. The wrongful and fraudulent act of the plaintiff, of bringing property of the defendant into this Stale, gave no jurisdiction to our courts, and the judge did not err in dissolving the¡ attachment. ■

Judgment affirmed.


author: SniDEiii., J.

text:
    Downes v. Ferry.
    A judgment will not be reversed for an error in calculating interest, not exceeding five dollars in amount, where no effort was made to correct it in the lower coart by an application for a new trial.
    from the District Court of Carroll, Copley. J.

      Stockton and Steele, for the plaintiff.

      J. Dunlap and Harmon, for the appellant.
   The judgment of the court was pronounced by

SniDEiii., J.

The defendant complain that the judgment allows interest from too early a date. The'difference arising from the alleged error is about §5. No effort was made to have it corrected by an application for a new trial. The amount is too insignificant to justify the reversal of the judgment, and the infliction upon the appellee of the costs of the appeal. See Medley v. Voris, 2 An. 141. Judgment affirmed.