text:
    No. 9413.
    Félicien Landèche vs. Delord Sarpy.
    The contract involved is interpreted and held to be a valid reciprocal contract, by which the plaintiff was bound to furnish, and defendant receive and pay for, hogsheads and-barrels, as required under the terms of the contract, at the prices fixed ; and also that defendant was bound to pay for the articles as delivered. Campbell vs. Lambert, 36 Ann. 35, commented upon.
    Plaintiff having delivered certain barrels andhogsheads, which had not been paid for though the bill had been presented at defendant’s office, and having informed defendant’s agent that he would furnish no more because his bill had not been paid, and no offer to pay having been afterwards made, was not in default during the term of his contract.
    The breach of contract complained of being one of nonfeasance, and there being no legal excuse for omission to putin default, defendant’s reconventdonal demand for damages is rejected.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      James Legendre and St. M. Bérault for Plaintiff and Appellant.

      Henry Denis for Defendant and'Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff sued the defendant for $539.30 value of certain hogsheads and barrels furnished the latter for the use of his Glendale and St. George plantations.

Defendant answered by a general denial as to plaintiff’s demand, and then, assuming the character of plaintiff in reconvention, alleged substantially that plaintiff had contracted to furnish him all the hogsheads -and barrels necessary for the sugar and molasses which he would make during the crop-year of 1882 on his Glendale and St. George plantations, on the same terms and prices on which he had furnished them for the preceeding year, viz : at $2.60 per hogshead and $1.25 per barrel, and to deliver the same as required; that plaintiff partially complied with his contract by furnishing some hogsheads and barrels during the months of November and December, but subsequently refused to furnish anymore, notwithstanding repeated demands; that defendant was, therefore, compelled to purchase at higher prices, occasioning him a direct loss of $1,724.35 in difference of i>rice, besides other damage, aggregating in all $2,419.07, resulting from plaintiff’s inexecution of his contract; and he prayed for judgment dismissing plaintiff’s demand and awarding defendant the sum claimed as above.

There was judgment below in favor of plaintiff for the amount of the principal demand, and in favor of defendant for $1,724.35 on his reconventional demand.

I.

Plaintiff and appellee suggests absence of jurisdiction in this Court on the ground that the amount in dispute is only $1,879.77, being the difference between the principal and reconventional demands. The question is to be determined on the face of the pleadings, and from the review of these which we have given above, it fully appears that there is no admission of any amount due to plaintiff, but, on the contrary, a denial and prayer for its rejection. Hence, the authorities quoted (35 Ann. 346; 33 Ann. 1089; 26 Ann. 291,) even if otherwise applicable, do not’reach this case. The suggestion has no merit.

II.

Plaintiff contended that the contract alleged and proved was a simple promise to furnish the hogsheads and barrels at the price stated on the demand of defendant, without any reciprocal obligation on the part of the latter to take and pay for them, and was, therefore, void for want of a cause or consideration, under the doctrine of Campbell vs. Lambert, 36 Ann. 35.

After a close study of the evidence we conclude that the contract, sufficiently alleged and proved, was reciprocal, equally binding the plaintiff to furnish, and the defendant to take and pay for, the articles; at the prices fixed. That this was plaintiff’s understanding of the contract is sufficiently apparent from his letter, in which ho thanks Mr. Sarpy for having agreed to “continue to take hogsheads and barrels from him.” It follows that Campbell vs. Lambert has no application ; but, so far as this question is concerned, it falls under the authority of Beck vs. Pleitas, 37 Ann ; in which a similar contract was upheld.

The decision in Campbell vs. Lambert was so freely criticized in the argument here as violative of the principles of the civil law, that we feel compelled to notice it. The authority of Pothier was firmly relied on as establishing the contention. This exhibits a misapprehension of the question involved. It is conceded that a promise to sell without a reciprocal promise to buy might be valid under the civil law ; but the question is whether Art. 2462 of our Code and 1589 of the French Code has not changed the prior law in this respect, upon which question, of course, Pothier is of no authority. The French commentators and courts are divided on the question, several holding that such an unilateral promise is no longer binding. Journal de Palais, 29th Aug. 1829 : Journal de Palais, 28th June, 1832; Merlin Rep. vo. Vente, §■ 7, No. 5; Favard vo. Vente, sec. 1,4 4; Rolland & Villargues vo. Prom, de Vente. On the other hand, Troplong, Marcadé and others of high authority maintain that the Code has not altered the ancient law on this point.

In such a conflict we would feel at entire liberty to follow either solution according to our own judgment. But we have not yet had ■occasion to make the choice. We have not held in Campbell vs. Lambert that no unilateral promise to buy or sell is valid ; but simply that ■such a one as was there exhibited is not. While the ancient civil law and many commentators on the French Code have maintained the validity of an unilateral promise to sell at a fixed price, within a given ■delay, a house, a farm, a horse or other inarticular thing, we venture to ■say that no system of law or respectable author has ever extended the principle to such a promise as that exhibited in Campbell vs. Lambert, which concerned merely a given quantity of a merchantable article fluctuating daily in price, and the effect of which was to enable the promisee to enforce the sale if the market went in his favor and to abstain if it went against him. In point of fact, in Campbell’s case, the promisee claimed a profit of $29,000, on an executory contract under which he ran no possible risk of loss. In comparison with a system of law sustaining such a contract, the ethics of the gambler’s.code would have been respectable; for that prohibits betting on a certainty.

IV.

A pivotal question under the facts of this case, is what were the terms of the contract as to the payment for the articles furnished.

It is admitted that the contract was similar to that for preceding year. Landéche says positively that u the terms of the agreement were that ho would pay me for the goods on and at each delivery thereof. ” Sarpy testifies that there was no agreement as to the time of payment. He admits, however, that the mode of execution had been to pay on ■delivery, saying, “ when he used to send barrels he would bring the bill in and I would pay him. ”

In the absence of express agreement for delay of payment, we know •of no principle under which defendant could claim the right to terms •of credit for goods delivered ; and, in view of the conflict of evidence and of the interpretation placed on the contract by the mode of execution pursued between the parties, we are compelled to conclude that plaintiff had the right to demand, and defendant was bound to make, payment for the goods as delivered.

V.

Between November 17th and December 7th, 1882, Landéche had delivered goods to the value of $539.30, the price of which was due.

Mr. Sarpy was Ills own merchant, selling his own crops, and kept an office in New Orleans where he transacted his business. He says himself he kept it “ as the place where he was to be found to pay his bills.”' We assume, and it is nowhere denied, that it was the proper place forLandéche to present his bill for payment. He sént it to his merchant in New Orleans for presentation and collection. It was returned to-him with the information that it had been presented at Mr. Sarpy’s, office, and that “Mr. Sarpy being always ill, his son had answered that he could not pay your account.”

The clerk who presented the bill testifies as follows: “The son said: to me that his father was sick, and that during his absence from the-office he, the son, could not pay the bill. I asked him when the bill could be paid, and he told me that he did not know.”

Mr. Sarpy himself admits that the fact of this demand was. communicated to him.

Shortly after this, Agaisse, an assistant overseer of Sarpy, on Hiéndale plantation, and an agent in reference to this'business, called upon Landeehe to get headings for hogsheads furnished under the contract,, when he was informed by-Landecho that “if I was coming for hogsheads and barrels I could go back, for. he would not furnish Mr. Sarpy any more hogsheads and barrels, because he had had his bill presented, to Mr. Sarpy and he had refused to pay it.”

This is proved by the testimony of Agaisse himself and four other-witnesses; and Agaisse further states: “I then told him it was all right, and I would inform Mr. Sarpy of the fact.”

It seems that Agaisse never did convey this information to Sarpy,, since the latter declares that he never knew that Landéche assigned such a reason for his refusal; but that is the'fault of the agent, not imputable to Landéche; and under the doctrine that knowledge of the agent is knowledge of the principal, Sarpy is, in the eye of the law,, affected with such knowledge.

He never, thereafter or at any time, paid or offered to pay the past due bill, which, under the view’we take of the contract, was a condition precedent to his right to require Landeehe to- proceed under it.

The vague testimony that in reply to subsequent demands, Landécheassigned different reasons, sending messages sometimes, “that lie did, not have the barrels and hogsheads, and sometimes that he would see-me,” does not affect the case.

The first reason already assigned was sufficient and placed Landéchein his right.

We conclude that during the entire term of his contract, Landeehe was never in default, and that defendant’s reconventional demand was-wrongfully sustained by the lower court.

This is a case of nonfeasance, not of defective execution, and, therefore, Berje’s case, as appears from the last opinion therein, is inapplicable. 37 Ann. 471.

In cases of nonfeasance, or failure to perform an executory contract, putting in default or some valid excuse for omitting it, is essential to the recovery of damages. C. C. 1912-3-4.

Wo have admitted various excuses for the omission, such as the ouerecently accepted in Beck vs. Fleitas, where the party had denied the existence of the contract, and we held that putting in default would have been useless.

But here, in order to put Landeche legally in default, it was-necessary, under C. C. 1913, that Sarpy should ■“ offer or perform, as the contract requires, that which, on his part, was to be performed,” viz: to pay for the articles already delivered. Non constat that, if he had made such offer and demand, Landeche would not have complied with his contract.

We have considered the suggestion that, in view of Mr. Sarpy’s admitted means, the excuse of Landeche was a mere pretext to escape from a bad bargain. Very likely he availed himself of the excuse because it ivas his interest to do so; but, if the law secures to him the right of requiring default before being held for damages, we cannot deprive him of it, because his motive in exercising the right may have been questionable.

Tt is therefore ordered, adjudged and decreed that thé judgment on the reconventional demand hereiu appealed from be and is hereby annulled, avoided and reversed, and it is now decreed that said demand he dismissed at reconvenor’s costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9449.
    Succession of Julia F. Hosser, wife of Theodore Lilienthal.— On Petition of Louis Lilienthal.
    An act of adoption, executed in the manner prescribed by law, confers on the adopted child' against the adoptors all the rights of a legitimate child, provided, they do not interfere-with those of forced heirs.
    Hights thus conferred can no more be divested by a will than can be those of a legitimate child, born of the adopting person.
    The disposition which a married woman, who leaves no forced heir, makes under such cir cumstances. in favor of her husband, of the bulk of her estate, is reducible to the disposable portion.

      APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Farrar & Kruttsclmitt for Appellant.

      Brauglm, Buelc & Binlcelspiel and A. Bernau for Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action for the nullity of the will of the deceased, so far as the disposition which it contains may affect the inheritance to which the plaintiff claims to be entitled, as the forced heir ■at law of the testatrix.

From a judgment making the reduction, this appeal is taken.

Louis Lilienthal was formally adopted by Mr. and Mrs. Theo. Lilienthal, as their son, on their petition to a district court and the authority of that court referring them to a notary for the execution of the act •of adoption; the proceeding having been carried on contradictorily with a tutor ad hoc.

Mrs. Lilienthal. subsequently made her last will, instituting her husband her universal heir and legatee.

She afterwards died, leaving no forced heir. Her succession was •opened by her husband, who was ex jpa/rte recognized and put in possession.

The laws enacted relative to adoption are, Acts No. 48 of 1865 ; 17 of 1867 ; 64 of 1878 and 81 of 1872. See also R. S. 2322-8.

The sole provisions on that subject, found in the “ Revised Civil Code, ” are contained in Art. 214.

The statutes and the code regulate the forms to be followed and announce the rights acquired, in such cases.

The first of the acts had for its object, to permit adoption, which previously was prohibited in this State.

It provides for the judicial proceeding to be had, the judicial authority to be obtained and the notarial instrument to be executed, in ¡furtherance of it.

It decides however, that the adoption, authorized by it, shall, in no manner, interfere with the rights of forced heirs.

Article 214 of the R. C. C. provides: that the person adopted shall have all the rights of a legitimate child, in the estate of the person adopting,'except that such adoption shall not impair the rights of forced heirs.

In 1858, wlien adoption was prohibited and allowed only by special legislation, the then Supreme Court was called upon to determine what the rights were of an adopted child. 13 Ann. 516.

The pretensions of the claimant rested on an act of the Legislature •of 1837, which enacted, that the husband and the wife ( naming them ) “be authorized to adopt a young orphan child named Adele, aged ■ about seven years, who had been brought up by them, provided the ■ adoption be executed by act signed before a notary public in said Parish of Orleans, within six months, after the passage of this law. ”

The contest was between the adopted child and the collateral heirs ( nephews and nieces,) the wife having died, leaving no forced heir.

The act was silent as to rights conferred or restrictions placed.

In an elaborate and learned opinion, the Court held, through its •organ, C. J. Merrick, that the act in question had to be interpreted as ■conferring on the adopted child, all the rights of a legitimate child and as entitling him to inherit the estate, to the exclusion of the collateral heirs. Vidal vs. Commagere, 13 Ann. 516.

It is true in the case thus decided, the deceased had left no will; while in the present instance, she has.

This circumstance is of no moment.

The act of adoption conferred on the adopted child, all the rights •constituting the relation of parent and child and all the consequences Rowing from that relationship, as against the adoptors; with this restriction, that the adoption was not to interfere with the rights of their forced heirs, that is: of the ligitime of such heirs.

Such must have been the understanding of the law by the parties? for, in the act of adoption, they expressly declare that they do adopt Louis Mitchler and invest him with all the rights and privileges appertaining to legitimate children, and for all intents and purposes, consider him as if he was actually and in fact their legitimate son,—it being understood that the adoption shall not affect the right of forced heirs, if any.

The rights conferred were those of a legitimate child, that is : rights to inherit both 'without, and notwithstanding a will.

It therefore follows that the attempt to divest such rights must necessarily prove of no effect beyond the disposable portion.

As Mrs. Lilienthal left no forced heir, the adoption could not and did not clash with the rights of any forced heir, and the adopted child was ■called to inherit from her, as though he were a legitimate child, born of her body; otherwise he would have had to take from the disposable portion.

This conferring of rights was as complete and potent, as that which the law would have made, had the plaintiff been born from the testatrix, and could no more be divested than the latter, by testamentary disposition. Tlie adoption produced that effect, or it was an idle and. barren ceremony.

Tlie district court decided correctly.

Judgment affirmed.

Rehearing refused.__


author: Fenner, J.

text:
    No. 9511.
    The State ex rel. Geo. Nicholson and Wife et al. vs. The Judge of the Civil District Court for the Parish of Orleans, Division A.
    In an application for mandamus to compel an inferior judge to grant a preliminary injunction which he has refused, the mere allegation of error in the ruling, unaccompanied by any charge of arbitrary or oppressive conduct, denial of justice, refusal to perform any duty, or by any showing of absence or inadequacy of other means of relief, will not support the remedy sought. The writ of mandamus is an extraordinary remedy, only allowed under the exceptional circumstances set forth in the law, the existence o® which must be sufficiently set forth in the petition.
    ^^PPLICATION for Mandamus.

      Thos. J. Semines and Bobt. Mott for the Relators.
    Respondent judge propria persona.

   The opinion of the Court was delivered by

Fenner, J.

This is an application for the exercise of our supervisory jurisdiction by making peremptory a writ of mandamus commanding tlie inferior judge to grant a preliminary injunction, which, upon due consideration and for reasons given, he has refused.

The petition for the mandamus is.barren of any allegations supporting tlie relief asked. It does not charge tlie respondent judge with any arbitrary, oppressive or illegal conduct, or with failure or refusal, to perform auy duty of his office, nor does it set forth the absence or inadequacy of pther means of relief. The sole qualification of the conduct of the judge is contained in the phrase: “ The court refused the injunction on authorities which your relators believe are not obli gatory and have no application ”—and no other ground for our interference is assigned.

We are merely asked to correct an alleged error in the ruling of the judge, and no showing is made justifying the substitution of the extraordinary remedy by mandamus for the ordinary relief by appeal which the law affords.

Tlie articles of the Code of Practice touching the writ of mandamns- and our decision in the case of State ex rel. Murray vs. Judge, 36 Ann-578, sufficiently indicate the exceptional circumstauces under which alone this relief is granted and the necessity of alleging their existence as a prerequisite to the remedy.

We have no occasion, therefore, to proceed to the consideration of' the correctness vel non of the judge’s ruling; but see N. 0. vs. Tel. Co., 37 Ann. 571.

It is, therefore, ordered that the restraining order herein issued be rescinded and that the application for mandamus be refused at cost of' relators.

Rehearing refused.


author: Manning, J.

text:
    No. 9499.
    The State ex rel. Margaret Matt and Husband vs. N. H. Rightor, Judge.
    OL'he statute requires tliat proceedings by a landlord against his tenant for the recovery of* possession of leased property shall be summary, an.d this applies equally to such proceedings in the appellate as’in the court of the first instance.
    Where an exception had been filed in the City court and had been maintained, and on appeal the District court had reversed that ruling, it was the duty of the latter court upon such reversal to proceed to hear and determine the merits. ,
    Such appeals are triable by the District courts in vacation or the summer recess as like cases are triable by those courts in vacation when originating in them.
    Pleadings are taken for what they really are and not for what their authors designate them.
    A PPLICATION for Prohibition.

      A. Bernau for the Relators.

      Braughn, Buelc, Binlcelspiel t& Hart for the Respondent.
   The oxiinion of the Court was delivered by

Manning, J.

George Boning brought suit in the City Court against his lessees and tenants Margaret Matt and husband to recover possession of the leased premises, and they excepted alleging illegality of the notice and of citation and informality of th,e proceedings. Their exception was maintained and a judgment of dismissal, as of' non-suit was entered, from which Boning appealed to the District. •■Court. The case was allotted to Judge Tissot. but he being absent during the summer vacation and having designated Judge Rightor to .act in his stead, it was tried by the latter judge, who overruled the ■exception, heard the merits and gave Boning judgment for possession. Whereupon the tenants obtained writs of certiorari and prohibition from this court to the end that the regularity and legality of the proceedings below shall be examined, the case not being appealable. The monthly rent was sixty dollars and the suit was filed and decided in August last.

When the case reached the District court the landlord moved that it be fixed after three days notice, which was done, the tenants objecting to a summary trial and to a trial in vacation at all, on the ground that such trial could be had only of cases originating in the District court.

The objection was properly overruled. The statute specifically requires that these proceedings of a landlord against his tenant shall be summary, Rev. Stats, secs. 2155-6, and this prime object of the law would be defeated if the trial on appeal should not be equally rapid .as in the court of the first instance. The 3d Rule of the Civil District Court includes suits of a landlord for the possession’ of leased property .among those triable in the summer vacation, and must be construed with the 32d Rule that provides for the trial'of appeals from the City -courts so that nothing contained in either shall interfere with the statute above cited or retard the hearing of suits of this kind.

Another objection was that no trial could be had upon the merits—■ that as the judgment of the City court was on an exception the District court could do no more than say whether it was right or wrong, .and if wrong remand the case for trial in the City court.

This would more effectually retard the trial than the other objection. The proceedings in the City courts are assimilated to those before ■ Justices of the Peace, Acts 1880, p. 45. Appeals from these latter were tried de novo, Rev. Stats, sec. 2052, and not only de novo but the whole case was before the appellate court which must render such Judgment as should have been rendered in the first instance. Code Prac. art. 1138. Neither could the requirement of summariness be • complied with without disposing of the whole case on one appeal.

The suggestion made here that Judge Rightor was not competent to •try the case because it had been assigned to Judge Tissot cannot be heard. No objection was made to his trying it, and even if it could -have been effectual below it is too late to make it here for the first dime.

Further complaint is made tliat the judge treated what the counsel.1, called an exception as an answer. The judge properly so treated it. Pleadings are taken for what they really are and not for what their authors designate them. But whether exception or answer all defences must he made at once in summary proceedings. But in truth there was no valid defence as abundantly appears from the judge’s return, and resort to the present proceeding appears to have been had for delay.

It is therefore ordered that the preliminary writs issued herein be set aside and that the application of the relators is refused at their-costs.

Rehearing refused.


text:
    No. 9590.
    The State ex rel. Morgan’s Louisiana and Texas Railroad and Steamship Company vs. The Judges of Court of Appeals of Third Circuit.
    It is not until after a plea to the jurisdiction, has "been made and overruled below, that an application for a prohibition can be entertained by the Supreme Court. In the absence* of an averment to that effect, the prayer for relief is premature and cannot be allowed..
    z\.PPLTCATI°M f°1' ProMbÍtí<m‘

      Leovy c(i Leory and J. P. Blair for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This application for a Prohibition is based on the ground that the Circuit Court, to -which appeals have been taken in a number of cases decided in favor of the relating company, has no jurisdiction over them, the matter involved in each exceeding, it is alleged, two thousand dollars.

The charge is that the Circuit Court “will, according to the mode of procedure which prevails therein, assimilate said motions to dismiss-with the trial of said suits on their merits, and unless restrained, will hear and decide them to relator’s great wrong and injury.”

It does not appear that the motions to dismiss have been overruled, and that the court is about to proceed to try the merits of the cases.

The complaint is, not that the Circuit Court has, notwithstanding" objection, maintained jurisdiction, hut that the court will hear and decide to relator’s great wrong and injury.

It is impossible to conceive bow, after tlie relating- company lias, by the motions to dismiss, invoked the powers of the Circuit Court, this ■Court can be appealed to, in order to prohibit the exercise of those powers.

Non constat the Court of Appeals will not sustain those motions, if ■it. he true, as alleged, that the matter involved in each case exceeds two thousand dollars.

Were the court, however, to overrule them illegally, the relators would be entitled to seek relief here against the effect of the ruling.

It has been repeatedly held, that it is not until after a plea has been made to the jurisdiction of a lower court and overruled by it, that the interference of the Supreme Court can be claimed.

There is no reason to depart from that wholesome rule of practice, which, well founded in law and reason, must continue to he enforced.

The application is dismissed with costs.


author: Poché, J.

text:
    Nos. 9490 and 9491.
    The State ex rel. Chas. N. Roth vs. Judge of Twenty-third District Court. (Consolidated.)
    An order of court, authorizing the seized debtor to release his property from seizure on bond, although rendered on a rule contradictorily between tbe parties, is not a final judgment, but an interlocutory decree, from which no appeal lies unless such judgment may cause an irreparable injury to the party against whom it is rendered.
    'Section 3411, Revised Statutes of 1870, which authorizes the release on bond of property under seizure, applies to all executions, to seizures under executory process, as well as to executions under writs of fieri facias.

    A seized debtoy, who applies for permission to bond his property either from seizure or sequestration, cannot be required as a condition precedent to pay judicial costs or expenses incurred by the sheriff for keeping or cultivating the property pending the seizure.
    The defendant owes no costs until final judgment on the controversy.
    The right of appeal from an order setting aside on bond a writ of sequestration, depends alike on the irreparable injurv which the order may cause to the party obtaining the sequestration.

      \ PPLICATION for Mandamus and Prohibition.

      I). N. Narrow for the Relator.
    Respondent Judge propria persona.

   The opinion of the Court was delivered by

Poché, J.

These two cases, involving rights of the same nature and between the same parties, have been consolidated, and are predicated on the following salient facts:

The relator, as holder of a mortgage note of J. E. Neely, obtained an order of seizure and sale against the property burdened with the mortgage, and pending the delaj's intervening before actual seizure, sued out a writ of sequestration against the same property.

After enjoining the execution of the writ, the defendant obtained, contradictorily with the seizing creditor and the sheriff, an order authorizing him to bond the property under the provisions of section 3411 of the Revised Statutes, and an order setting aside the sequestration on bond under the provisions of article 279 of the Code of Practice.

The judge’s refusal to grant him an appeal from both orders is the subject-matter of relator’s complaint.

In reference to the order releasing the defendant’s property from seizure under the executory process, relator submits the following propositions:

1st. That the decree ordering the release of the property on bond, is a final and not an interlocutory judgment.

The real issue between the parties was the relaior’s right to seize .and sell the defendant’s property. A final judgment in the case would be such as would decide that, as well as all other points in controversy between the parties. C. P. 539.

The only question involved in, and the only controversy settled by, the order complained of was the right of defendant’s retaining possession of the property pending the seizure.

It was only a preliminary matter, and the judgment which decided it was, therefore, an interlocutory judgment ( C. P. 538 ), from which no appeals lies unless it may cause irreparable injury to the party -against whom it was rendered. C. P. 566.

2nd. Hence relator’s second proposition is that the judgment thus Tendered against him would cause him irreparable injury, and he supports his assertion by the argument that section 3411, Revised Statutes, has no reference to executions under executory process, but only to executions under writs of fieri facias, that therefore there is no law .authorizing the order complained of, and that the bond furnished thereunder is invalid and valueless, thus leaving relator without remedy for the injury which he might sustain under the effect of the order of release.

Under a proper construction of the only issue involved in the pro•ceeding for mandamus, with a view to coerce the district judge to grant an appeal, the validity of his interlocutory judgment, is notripe for discussion, as such a revision could only be made on appeal. Our jurisprudence has crystallized the rule that in cases where the debtor lias furnished the bond required by law and fixed and accepted by the-court, the damages resulting from the releasing order cannot be considered as irreparable, for the plain reason that the bond of the debtor-stands in lieu of the property, and is sufficient in law to hold the-seizing creditor harmless against all the injuries which he may suffer under an illegal or improvident order of release. These considerations would afford a sufficient answer to the argument touching the irreparable injury to which he is exposed under the order which he seeks to-annul and set aside.

But as the discussion has been met without objection by counsel for-the respondent, we have considered the contention, and we reach the conclusion that it has no force.

Section 3411 of the Revised Statutes of 1870, is taken from Act No.. 91 of 1842, which is entitled, “An Act to fix the time for making sheriffs’ and coroners’ sales and for other purposes.”

The first section prescribes the mode of effecting all sheriffs’ and coroners’ sales, without exception and restriction. The second section vests the right of bonding their property to the defendants in executionr without definition or qualification of the modes of execution. We fail to see, either in the title or in the tenor of the act, any language or intimation justifying the suspicion that the law maker intended to restrict the provisions of the second section of the act to executions-under writs of fieri facias, and to exclude from its operation seizures, made by way of executory process.

In the absence of such language the unavoidable legal inference must be that the law maker meant j>rccisely what he said, and that the law applies to all the executions without reference to the nature op-the writ or mode of proceeding. Any doubt on the subject would be removed by the provisions of Article 745 of the Code of Practice,, which prescribes the same mode of execution under executory process, as that which prevails for the sale of property seized in execution. A similar question was recently considered by this Court, and similar views were expressed in the case of E. Martin, tutor, vs. Lake, sheriff, et al., decided at Shreveport and not yet reported.

3rd. The point that the judge should have required the seized’ debtor to refund to the sheriff the costs of cultivating the plantation since the date of seizure, as a condition precedent to his right of' releasing the same on bond, finds no better support in law or in jurisprudence. The defendant owes no costs until he has been cast in the suit. C. P. art. 549, Fink, executor, vs. Martin, 10 Rob. 147.

Tlie same considerations dispose of the argument touching the crops growing on the plantation pending the seizure.

All these questions necessarily remain undecided until the final determination of the controversy between the parties. The order to bond being legal, the bond being sufficient, all of relator’s recourse for damages, for expenses of cultivation, costs of suit, and for any and all incidental claims whatsoever, must in law be restricted to the bond.

We therefore conclnde that the judge did not err in refusing the appeal prayed for from Ms order authorizing the release of the debtor’s property from seizure.

The writ of sequestration which had been obtained avowedly in aid of the order of seizure and sale, must share the same fate as the latter, in so far as the order setting it aside on bond is concerned.

In support of his right of appeal from that order, relator contends in substance: 1st. That the order will cause him irreparable injury. That argument is practically answered by our foregoing reasons on the question of the order of seizure; 2nd. He contends that an appeal lies absolutely from such an order, without consideration of the nature or extent of the injury which may possibly be occasioned thereby. And for sole support of his argument he quotes the following language from our opinion in the case of Street, 35 Ann. 515:

“Now it is settled that plaintiffs and defendants have a right to take a suspensive appeal from an order permitting the bond ing of property seized by mesne process.” But that expression must be read with the statement in the following paragraph of the opinion, which reads thus: “By being divested of the possession of the mare sequestered in his' hands, the relator may sustain an irreparable injury, just as considerable as that which either of the other parties might suffer.” It is thus apparent that the opinion conforms to the established rule in such cases, which subordinates the right of appeal to the consideration of the possibility of irreparable injury, in consequence of the authorization to bond the property sequestered.

There is no error in- the refusal of appeals in both cases by the district judge, and his ruling must therefore be upheld.

It is therefore ordered that the preliminary writs and restraining orders issued in these cases be set aside and cancelled, and that relator’s applications for peremptory writs of mandamus and prohibition be denied at his costs.


text:
    No. 9519.
    The State ex rel. E. & W. B. Jacobs vs. Assessor et al.
    Sven if private bankers stood upon the same footing as incorporated banks, and were subject to the same rules of assessment as to their capital, and were to be taxed only upon the surplus of their assets over their debts, they could not escape taxation by simply • investing a portion of their assets, equivalent to such surplus, in non-taxable United States bonds; but such bonds, though themselves non-taxable. would nevertheless be counted as a part of the assets and as offsetting, to that extent, the liabilities. 29 Ann. 851.
    The claim of relators being thus untenable, on their own theory, it is unnecessary to con aider the more radical contentions advanced by defendants herein.
    A PPEAL from the First District Court, Parish of Caddo. Ok- Taylor, J.

      Wise & Herndon for Plaintiffs and Appellants.

      Land & Land, Attorneys of Police Jury, and M. 8. Grain, District Attorney, for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

Relators are private bankers in the city of Shreveport, and seek, in this proceeding, to procure reduction of an assessment under which they have been listed on the rolls, under the heading of “-Merchandise or stock in trade and in hand employed in their business,” in the sum of one hundred and eight thousand dollars.

They present the following statement of their assets and liabilities:

ASSETS.

Amounts due by banks..........................$ 87,272 84

Bills receivable................................. 50,081 04

Cash........................................... 101,030 34

United States bonds............................. 134,050 34

Amount due bank over drafts.................... 117,574 41

Real estate and bank fixtures.................... 12,828 71

Bremond Railroad certificate..................... 3,000 00

Suspense account................................ 5,834 00

C. G. Thurmond estate.......................... 1,479 00

$512,151 9.3

LIABILITIES.

Amounts due banks.............................$ 5,842 50

Amounts due certificates of deposits............. 42,895 17

Amounts due individual depositors............... 304,797 03

Exchange account............................... 22,789 02

Capital account................................. 135,628 46

Protest papers.................................. 238 00

$512,151 93

They quote the language of this Court in the case of City vs. Canal Bank, 29 Ann. 851, viz: “ The capital of a bank which is subject to taxation, as capital, is made up of the balance of its assets remaining after deducting its debts, that portion of its assets exempt from taxation, and that portion which is taxed under another name than capital,” and they say:

“Applying this rule to the instant case the result would be as follows—

Total assets May 30,1884........................$512,151 93

Less United States bonds........................ 133,050 00

$379,101 93

Total liabilities................................. 376,285 47

Taxable balance...........................;. .$ 2,816 46.”

But they entirely ignore the fact that, in' the very case quoted, the Court held, in substance, that a bank could not escape taxation by merely investing a portion of its assets, equivalent to their surplus, in non-taxable securities, but that such securities, “though themselves non-taxable, shall be counted, as they are used and designed to be used as assets of the bank for the purpose of off-setting and extinguishing so much of its indebtedness.”

Applying this rule, so self-evidently just and reasonable, we find, under relators’ own theory of the case, a resultant taxable surplus far exceeding the amount for which they have been assessed.

This dispenses us from considering the much more radical contentions of defendants, to the effect that the assessment here is not of corporate capital and is not subject to the rules governing such assessment; that this is an assessment of property; that relators have no corporate character; that they are mere private merchants, and, as such, are taxable upon all their property without deduction of their debts; and that money received as irregular deposits and appearing as cash on hand or as invested in bills receivable or otherwise, is the property of relators and taxable as such, like any other property.

These are important questions, involving the interests of many, and we prefer to postpoue any decision of them until some case is presented necessarily requiring it.

Judgment affirmed.


text:
    No. 9518.
    The State ex rel. Louis Barthet et al. vs. W. T. Houston, Judge, etc.
    The inferior court, whose judgment is appealed from, retains jurisdiction to determine primarily the character and effect of the appeal taken.

      A suspensive appeal taken from an order dissolving on bond an injunction issued to prevent the commission of acts which, if done, would cause an irreparable injury, places matters in the condition in which they stood before the motion to bond was made, and in which they would have continued, had not such motion been filed. In other words : the effect of the appeal was to maintain the injunction in force. 33 Ann. 438, affirmed. The district judge had authority to find and to punish transgressors for contempt.
    ^REPLICATION for Habeas Corpus.

      JB. R. Forman and F. H. McOaleb for the Relators.

      F. D. White for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relators complain that they have been illegally committed for contempt, by the district court and, alleging rights to a habeas corpus, want of jurisdiction in said court and usurpation of authority by it, they seek to be released from custody. They had prayed for temporary relief which was not allowed.

The district judge elaborately returns that he had jurisdiction and properly exercised it.

The record shows that certain parties obtained an injunction to prevent the defendants from doing acts which, if committed, would cause irreparable injury.

Shortly after, the defendants obtained a dissolution on bond, the order being made by a district judge sitting in the absence of the one who had allowed the injunction. Subsequently, within the legal delay, the latter judge having resumed his functions, the plaintiffs in injunction obtained and perfected a suspensive appeal to this Court, from the dissolving order, which appeal is undetermined.

The relators, defendants in injunction, then did the acts prohibited by the court and were ruled in for contempt.

After trial, the district judge considered that the effect of the suspensive appeal from the dissolving order, was to place things in the condition in which they stood when the motion to bond was made—that is to continue in force the injunction as though the motion had never been allowed. On the question of fact he found that the relators had violated the injunction and he sentenced them to ten days imprisonment.

The main and indeed the only point upon which the relators avowedly rest their complaint, is that as soon as the suspensive appeal from the dissolving order on bond had been taken and perfected, the district court ceased to have jurisdiction over the cause, and therefore was incompetent to entertain the rule for contempt.

The law and jurisprudence are no doubt in that sense, but however fettered by an appeal, the court a qua lias never been deemed absolutely stripped of jurisdiction to determine the character and effect of such appeal. 32 Ann. 814 ; 34 Ann. 90.

The appeal in this case does not affect the preliminary injunction; but only the validity of its dissolution on bond.

.In the present instance the district court had jurisdiction to ascertain primarily, whether the appeal granted was or not suspensive and, if suspensive, what it was that it suspended. It had also jurisdiction, finding that it had suspended the effect of the order dissolving on bond, to decide that the injunction was or not in force and also that its prohibitions had or not been transgressed. It could punish for contempt. 36 Ann. 942.

It is clear, as a matter of law, that the effect of the suspensive appeal from the order dissolving the injunction on bond, was to leave matters in the condition in which they stood before the dissolving order was made; a condition in which they continued as though that order had never been granted. Butchers’ Union vs. Judge, 33 Ann. 438, 494, 560, 134; also: 36 Ann. 192, 887, 192, 918; 34 Ann. 1181.

With the question of fact this Court has nothing to do.

We do not understand that the proceeding raises any issue beside that of jurisdiction just considered.

It is therefore ordered and decreed that the application herein for the nullity of the proceedings punishing for contempt, be refused with costs.


author: Bermudez, C. J. Todd, J.

text:
    No. 9488.
    The State of Louisiana vs. Michael Laqué et als.
    It cannot be claimed that an appeal is devolutive, where the appeal asked and allowed is suspensive, in express terms.
    An appeal cannot be taken from a judgment before it is rendered, or a bill taken before the ruling is made by the court.
    Üaking an appeal instanter from a j udgment quashing an indictment and ordering the discharge of the accused and the cancellation of their bonds, is not an act of acquiescence.
    An appellant who prays for an appeal returnable according to law, is not chargeable with any fault, where he suggests neither time nor place, and where the judge fixes both of his own motion.

      The filing of a transcript long before the return day is no cause for dismissing the appeal.
    There is no reason to quash an indictment because of a defect in one count thereof, whore the other count is perfect.
    There is no repugnancy in the two counts of an indictment, one of which charges larceny and the other receiving stolen goods knowing them to be stolen.
    In the count for receiving stolen goods, it is not necessary to aver the name of the thief or of the person from whom the goods were received.
    APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Besamgon, J.

      M. J. Cunningham, Attorney Q-eueral, G. Biché, District Attorney, A. JE. Billings and C. A. Baguié, for the State, Appellant:
    All appeals in criminal cases are suspensive, aud no citation i3 requisite. Act ITo. 30,1878. The presence in court of a defendant in a criminal case when a motion for an appeal is made by the State and particularly after the information is quashed, is unnecessary. 31 Ann. 652; 32 Ann. 559.
    Where an appeal is moved for, returnable according to law, and the judge fixes the return day other than that fixed by law, the appeal will not be dismissed. B. S. 36; O. P. 898: 6 Ann. 474; 31 Ann. 504; lb. 595; 33 Ann, 1230.
    It is unnecessary to file a transcript of appeal in the Supreme Court, until the return day as fixed by the judge’s order granting the appeal. C. P. 587, 597.

      Michael Hahn, Morris Maries andF. B. JEarhart for Defendants andAppellees.
   On Motion to Dismiss.-

The opinion of the Court was delivered by

Bermudez, C. J.

Not one of the reasons assigned for the dismissal of this appeal is founded on fact or law.

. I.

The first ground is: that the appeal is devohitive, and the defendants have not been cited to answer it.

The motion of the district attorney was for a suspensive appeal, and the court ordered that a suspensive appeal be granted. R. pp. 26,44,45.

II.

The second ground is: that the appeal was moved for and granted after defendants were discharged and their bonds cancelled and the judgment acquiesced in by the State.

There is nothing in the record to show that the accused were discharged and their bonds cancelled before the appeal was asked by the State, or that the judgment was acquiesced in by the State.

The motion on this ground is not even sworn to, so that the averment rests for proof only on the ipse dixit of each defendant.

The record shows that as soon as the district judge rendered the judgment quashing the indictment and ordering the release of the accused, and cancelling their bonds, the State not only applied for a suspensive appeal, but took a bill of exception.

The State conld not have appealed before the judgment was rendered, or excepted before the ruling had been made.

The protest of the State by appeal and bill repels the charge of acquiescence, even if it could stand without proof.

III.

The third ground is:, that the appeal is not made returnable in ten days, according to law.

The State, through her representative, the district attorney, prayed for a suspensive appeal----to this Court____“returnable according to law,” without suggesting or fixing any return day. E. pp. 26-7.

The district judge allowed the appeal returnable to this Court on the first Monday of November, 1885. E. pp. 26-7, 45.

It may be that the judge ought to have made the appeal returnable either at Monroe, Opelousas, or Shreveport, as the judgment was rendered May 13th, and this Court, then sitting in New Orleans, was soon to adjourn there, and that he was wrong in making it returnable here on the first Monday of November following; but the State is not chargeable with the action of the court. The State did all she was expected to do and no fault is attributable to her. This has been frequently held not to be a sufficient ground of dismissal.

IV.

The last ground is: that the transcript of appeal was not filed in this Court within ten days from the granting of the appeal.

The transcript was filed, not after, but long before the return day, namely: June 30,1885, when it might hare been filed here only on the 2d of November following. The transcript was surely in the clerk’s office on that day.

The accused have no cause of complaint.

Motion to dismiss overruled.

On the Merits.

Todd, J.

This is an appeal by the State from a judgment quashing an information.

The defendants were charged in one count of the information with the crime of larceny, and in a second count, with receiving stolen goods, knowing them to be stolen.

The motion to quash is based substantially on the ground that the matters stated in the information and in the manner and form as therein set forth, are not sufficient in law, and that the counts in said information are cumulative and repugnant.

The substance of the reasons assigned by the trial judge for sustaining the motion may be found in the following from his written opinion :

“Because the State has omitted to mention in the second count the names of the parties from whom the stolen goods were received by' the accused, or to detail any facts or circumstances connected with or surrounding the said delivery or receiving of said goods, by which a conclusion could be drawn as to who transmitted and delivered the said stolen goods to the accused so receiving them.”

1. Even if this second count was defective, as held by the judge a quo, it was no sufficient reason for quashing the entire information. Where one of several counts in an indictment is good, a motion to quash will not be granted. Archibald, Crim. PI. and Prac., 1 vol., p. 308, 7th ed. note.

The count for larceny is in strict conformity to law and is not assailed.

2. The offense eliarged in the second count consists in receiving goods stolen from some other person than the receiver, knowing them to be stolen.

It is not necessary in such case to aver who stole the property; from whom received; or that the thief, or the one from whom received, was unknown. Bishop Cr. Pr., p. 282; 2 vol. Archibald, 7 ed., p. 654, note; State vs. Moultrie, 34 Ann. 448.

This count is not, therefore, open to the objection raised.

3. There is no repugnancy in the two counts of this information. The two offenses charged belong to the same generic class, and it is settled by ample authority that both counts may be made in the same -indictment, when separately made, as in this case. Archibald, Pomeroy notes, 8 ed., pp. 1164—1426-7; State vs. Crosby, 4 Ann. 434; State vs. McLean, Ib. 435, 437; State vs. Moultrie, 33 Ann. 1146.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed and the motion to quash be overruled, and that the case be remanded for further proceedings according to law.


text:
      No. 9429.

    Citizens’ Bank of Louisiana vs. J. B. Maureau et als.
    A party in possession of property as owner, and who is sued on an assumpsit of a debt secured by mortgage on said property, will not be allowed under a general denial to raise the issue that he has ceased to be the owner of such property, and that the same is owned by another person who is not a party to the suit and whose alleged title could not be thus passed upon.
    The right of a party who has erected works or improvements on the soil of another, to claim compensation therefor, cannot be exercised as long as the owner of the soil has not elected to keep such constructions or improvements.
    Creditors who in concurso over the proceeds of a sale of a plantation and appurtenances, claim 'privileges on movables attached to the realty, cannot enforce such privileges unless the specific items on which their privileges would attach have been separately appraised. The privilege is in the nature of a vendor’s lien, and it will affect only the specific property sold to the debtor.
    Privileges are stricti juris; they cannot be created by the convention of the parties ,* they must flow from the nature of the contract.
    The testimony of a married woman in proof of a paraphernal claim against hei husband in a sum exceeding §500, unsupported by corroborative circumstances, is insufficient to establish the claim.
    The transferrer of several of a series of notes secured by privilege, cannot compete with his transferee, if he holds one or more of said notes, for the proceeds of the property burdened with the privilege, if they are insufficient to satisfy both claims.
    PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      A, J. Lewis for Syndic and Appellant.

      Henry G. Miller, A. Pitot, Olay Knobloch, A. Grima, Honwr & Baker, J. H. Ferguson and H. G. Gage for Appellees.
   The opinion of the Court was delivered by

Poché, J.

The principal feature of this most complicated litigation involves a contest between the plaintiff corporation as seizing creditor and numerous interveuors and third opponents, over the distribution of the proceeds realized from the sale of the movable and immovable property sequestered and seized in the case.

The manifold issues and innumerable questions raised and discussed by counsel could not be understood without the following statement of the pleadings, and of the salient facts bearing on the main issues to be disposed of, which we have gathered with great pains and after protracted labors from a chaotic transcript and countless original documents, which have been brought up as part of the record.

On the 14th of December, 1883, the Citizens’ Bank brought suit against P. E. Tricou as actual possessor of the Greenwood plantation in the parish of Lafourche, for the purpose of foreclosing its stock and contribution calls and its loan debt, exceeding together the sum of eleven thousand dollars, and secured by mortgage on that plantation.

In the suit the bank obtained a sequestration of the crop made on the plantation during the year 1883, or of such portions of said crops .consisting of sugar and molasses, as had not been previously .disposed of.

The case having been put at issue through an answer of general denial by Tricou, judgment was rendered against him in the sum above stated on the 23d of February, 1884, under which the plantation and appurtenances were seized and sold on the 17th of May following, all of which being adjudicated in block to the bank for $21,240—two-thirds of the appraised value thereof. Under the judgment, the buildings and improvements and all the appurtenances were appraised separately from the naked land, and in his deed the sheriff establishes the>pro rata of the price of adjudication to be attributed to the buildings and improvements and other appurtenances respectively.

That feature of the judgment was the result of numerous interventions and third oppositions filed by sundry parties, who respectively :urged liens and privileges on different and specific items of buildings and other improvements included in the seizure.

Those interventions were as follows :

1st. The syndic of A. F. Himel presented a claim of $32,941, in reimbursement of advances of money, supplies, building materials and machinery, made by said Himel as the factor and commission merchant of one J. E. Logan, the .lessee of the plantation during the years 1881, 1882 and 1883, $20,000 of which were for such advances alleged to have been made during the current year 1883, and for all of which a ranking privilege was claimed on the crop, the buildings and improvements, and on the working animals and implements of husbandry.

To that action the syndic engrafted a demand for the same amount, sounding in damages against the Citizens’ Bank for an alleged violation of an agreement made by the bank, as part of the contract between Himel as merchant and Logan as lessee and Tricou as lessor, by which the bank had stipulated not to seize the leased premises or otherwise interfere with the lessee in the cultivation or saving of his crop, before the middle of January, 1884.

2d. Bourgeois and Lefort urged a claim for lumber furnished in the sum of $45 00, with privilege on the sugar-house. '

3d. L’hote & Co. claimed the sum of $669 72 as a balance on certain- cabins and-materials therefor furnished to the plantation, with privilege on the property thus sold by them.

4tli. Lawrence Keefe urged a claim of $473 94, for sundry articles of machinery and repairs on the mill and engine, with privilege on the engine.

5th. James Reagan intervened as subrogee of A. Garriere & Sons on a claim of $950 00, as the purchase price of four certain mules described in the testimony, and of a horse, with privilege on the animals sold.

6th. Mrs. S. P. Logan, wife of the lessee, J. E. Logan, claimed the sum of $3200 out of the proceeds of the sale of one undivided half of all the mules, agricultural implements and all other movable effects on the plantation at the date of seizure, on the ground that said described property had been transferred to her in full ownership by her husband as a elation in payment, on a ejaim of $4458 which she had against him for the restitution of her paraphernal funds received for her by her said husband.

7th. A Carriére & Sons, to whom the Citizens’ Bank, plaintiff herein, was subsequently subrogated, urged a claim exceeding $11,000, as holders in collateral security of notes aggregating some $15,000, acquired by them in due course of business from A. E. Himel, said notes being included in those representing the advances of the current year, making up the sum of $20,000 hereinabove mentioned as evidenced by the factor’s contract between Himel the commission merchant and John E. Logan the lessee.

The various issues presented by the interventions were dealt with by the district court, as in the case of a concensus, and the trial resulted in a judgment dismissing the intervention of the syndic of. A. E. Himel, and maintaining all the other interventions for the sums respectively claimed by the intervenors. The merits of the judgment as regards each of the interventions will be considered in another part of this opinion.

The syndic alone has appealed from that judgment; and the defendant Tricou has appealed from the judgment against him on the main action, rendered on the 23rd of February, 1884.

His contention is that he could not be condemned as proposed in the judgment, for the reason that ho had no title or ownership to the Greenwood plantation at the time that this action was brought against him. The grounds of this action are as follows:

Tricou acquired the Greenwood plantation by purchase from Mrs. J. B. Maureau, who liad bought it in 1866, at a marshal’s sale, under the confiscation act of Congress of 1862; up to which time said plantation had been the lawful property of Gen. Braxton Bragg, for whose alleged offenses the confiscation sale had been made.

It is then stated that by the death of Gen. Bragg, which had occurred before the date of this suit, the title of Tricou, which was that of a life-estate only, had terminated and that the title to the fee had then and thus reverted to the legal heirs of Gen. Bragg,'who were the lawful owners of the property at the time of the institution of this suit.

Had this issue been tendered by the pleadings, the argument used by appellant would be very plausible, if not unanswerable. But, as stated in the first part of this opinion, Tricou’s only defense was the general denial—under which no such issue as this, which was tendered on trial only, and now on appeal by way of argument, can be entertained. The plainest rules of practice are sufficient to justify the complete elimination of this issue in the present controversy. An adjudi cation of that issue under the pleadings as made and as presented, might have the effect of annulling the sale made under the judgment, ■and of settling titles to a'large estate, in the absence, as parties to the suit, of the heirs of Gen. Bragg, who are the alleged owners of the plantation.

Hence, we find no authority or power to justify us to disturb the judgment on this ground. In a proper proceeding, and with the proper parties before the Court, the defendant would doubtless find a remedy from the error which he invokes in this connection.

1st. These considerations will serve to.dispose of some of the positions assumed in this Court by the syndic of A. P. Himel in reference to the judgment which he appeals from and which distributes the proceeds realized from the sale of the plantation and appurtenances.

Feeling and appreciating the weakness of his contention for a priv ilege for his advances on the buildings, improvements, working animals and movables generally, which had been attached to the plantation during the lease, of which Tricou was joint owner with Logan the lessee for one-half, the syndic appellant advances the following argument in support of his claim to at least one-half of the proceeds realized from the sale of that specific property.

. He bases his contention on the right of Tricou to claim as his property all the improvements which he had placed on Greenwood plantation during his occupancy under his life-estate—and as the rights of Tricou have been seized by Himel under a judgment which he had obtained against Tricou on confession for $32,941, the full amount of his claim.against Logan and Tricou in sólido; the syndic as judgment.creditor lias tlie legal status and power to enforce all the rights which Tricou had in the premises.

But appellant is met by an insuperable objection emanating from the. very law which he invokes in support of his claim. Article 508 Civil Code, reads: “When plantations, constructions and works have been made by a third person, and with such person’s own materials, the owner of the soil has a right to keep them or to compel this person to take away or demolish the same.”

Then the article provides as follows: “If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have-acquired thereby.”

Now, either Tricou was the owner of the soil at the time of the seizure, or, as the syndic seems to contend, the legal heirs of Gen. Bragg were the owners thereof. If Tricou was the owner, the claim falls because the improvements, having been attached to his own soil, became part thereof and as such became with the land subject to the mortgage of the Citizens’ Bank. If the heirs of Bragg were the owners, Tricou has not the power to claim compensation for his improvements before the owner of the soil has elected to keep them. Kibbe vs. Campbell, 34 Ann. 1163, and authorities therein cited.

Hence it follows that under the pleadings in this case the syndic’s contention cannot be entertained, and that such balance of the proceeds realized from the sale of the improvements as may remain in the hands of the sheriff after paying the special privileges to be recognized in the decree which will be rendered herein, might eventually be applied to the unpaid portion of the mortgage of the Citizens’ Bank, unless in a proper proceeding it should be judicially ascertained that Tricou was not the owner of the soil at the time of the seizure. In that event the law quoted from the Civil Code would take its natural course, and the syndic appellant might properly enforce the rights of his judgment debtor to a portion of the proceeds. To that end his rights will be reserved in our decree.

It needs no argument to dispose of his pretentions to a privilege on the buildings and improvements as a security for his advances, although such a privilege was stipulated in his act of pledge with Logan. The law confers no such privilege, and none can be enforced —a privilege cannot be created by convention between the parties, it must derive its existence from the nature of the contract and from the law applicable thereto. .. *

Himel’s claim against tlie Citizen’s Bank on account of its alleged violation of the agreement for a stay of execution, cannot be enforced in an intervention involving the proper distribution of the funds realized from the very execution complained of as untimely and illegal. Such a demand can have no possible connection with the only matter under consideration which is the disposition of a fund to be distributed, and in which this appellant seeks to participate. It is simply a claim for damages, and could be enforced in a direct action only. His rights to such an action are reserved. His intervention should be dismissed as in case of non-suit.

We. shall now proceed to consider the other interventions.

2d. The privilege claimed by Bourgeois and Lefort should have been rejected, for the reason that the sugar-house on which they attach their privilege was not appraised separately.

The appraisement on this score was as follows: “All the buildings and improvements and all its appurtenances appraised at $7,120—-pro rata proceeds for the same as shown by the sheriff’s deed, $2,835 56.

It is true that the sugar-house was included in that api>raisement— but it appears from the record that there were mauy other buildings ; such as a dwelling-house and out-houses, stables, laborers’ quarters, etc., and these were also included under the same heading, hence the impossibility to ascertain the appraised value of, or the pro rata brought by the sugar-house.

3d. Similar reasons apply to, and dispose of the privilege erroneously allowed to L’liote & Co. Their claim was for a privilege on the cabins and appliances furnished by them to the Greenwood plantation—but those cabins were not separately appraised, hence the court cannot legally ascertain the amount realized from the sale thereof.

4th. We find no error in the allowance made in favor of Lawrence Keefe. The engine which was subject to his privilege was appraised separately, and it appears from the sheriff’s deed that the pro raia proceeds realized therefrom, amount to the sum of $597 38.

5th. We find error in that part of the judgment which recognizes a privilege in favor of James Began, subrogee, for the full amount of his claim of $950, and directs the payment thereof out of the “ proceeds of sale of the mules sold herein.” The record shows that thirty mules were “ sold herein ” as attached to the Greenwood plantation, and that thep?-o rata proceeds realized therefrom amounted to $1,194 76. It would indeed be a violent presumption to hold or contend that the four mules sold by Began to the lessee had brought $950 of that ’amount.

The mules sold by this intervenor were not appraised separately, and if his mules were yet on the plantation, which is not shown affirmatively by the record, they were appraised and sold in block with twenty-six other mules, and the record contains no evidence of their separate value, or of the amount realized from the sale thereof. Again, that feature of the judgment is incompatible with the allowance made in the same judgment in favor of Mrs. Logan, under the alleged elation in payment of her husband to her. That sale includes one-half of the thirty mules in question. The practical effect of that adjudication involves the problem of paying in full $597, the half realized from the thirty mules, and $950, say $1,547 and interests with a fund amounting to $1,194 76. The privilege claimed by Regan must therefore be rejected.

6th. We are also constrained to differ with our learned brother of the district court in his conclusions touching Mrs. Logan’s claim.

Her contention is that, at the date of the sale, she was the absolute owner of one-half of thirty mules and of other movable property included in the seizure, aggregating per appraisement, the value of $2,825, and that she was also the owner in full of other movable prop • erty appraised at $435, all of which had been transferred to her by her husband in part payment of her paraphernal funds, amounting to $4,458 20. The whole evidence introduced by her, in proof of her claim, consists of the act of dation en paiement, of her own testimony and that of another witness. The act proves nothing but the intention of the parties—the other witness avowedly knows nothing of the correctness of her claim—and she is thus alone to establish a claim of $4,458.

That evidence is far from being satisfactory, and falls short of the requirement of Art. 2277 of the Civil Code, touching corroborative circumstances supporting tho testimony of one witness in proof of obligations exceeding five hundred dollars. Cutler vs. Collins, 37 Ann. 95. Her claim should have been defeated.

These views eliminate from discussion many other points discussed by counsel in connection with the claim.

7th. There is no error in the disposition made by the district court of the proceeds realized from that portion of the crop of 1883, which had been sequestered in the suit of the Citizens’ Bank, and which were applied by the judgment in part satisfaction of the privilege securing the notes acquired from the factor Himel by A. Carriére & Sons, and transferred pendente lite to the bank.

The record does not show what amount was thus realized from that source, but it is conceded that it was insufficient to satisfy the amount actually due to the Carriéres; that amount is fixed by the judgment at $11,000; as contended for by appellant, it should be reduced to $10,563—but that error is of no moment, as the x>roceeds of the crop are avowedly insufficient to satisfy the claim even as thus reduced.

The syndic and appellant, holding one of the notes of the series making up the advances of $20,000, erroneously contends that he should partake in the pro rata realized from the crop. Himel, as the transferrer of the notes held by the Carriéres, could not compete with his transferees in the proceeds of the property burdened with a privilege to secure said notes, if they are not sufficient to satisfy the claims, of both. Abney & Co. vs. Walmsley et al. 33 Ann. 580; Reine vs. Sack, 31 Ann. 859; Barkdull vs. Herwig, 30 Ann. 618; Salzman vs. His Creditors, 2 R. 243.

His syndic, as his assignee, cannot exercise rights which ho himself did not possess.

There is no force in the contention as advanced by this syndic appellant, that the Citizens’ Bank is estopped from claiming the ownership of this claim under the subrogation from Carriére & Sons, by its judicial recognition in this suit, of the ownership thereof by Carriére & Sons. He has no interest in law to raise such an issue. The Carriéres do not complain, and he cannot be allowed to champion their supposed rights of ownership; whether the amount is received by the Carriéres or by the bank, is an incident of no concern to this appellant who, in either event, is not in the least affected in any of his rights. 34 Ann. 907, Bothick vs. Greves et al.

We have thus disposed of all the pertinent contentions which are presented under the pleadings, and we reach the conclusion that the funds now remaining in the hands of the sheriff after, the payment of Lawrence Keefe’s claim, and of the costs incurred in the ooncursns below, should be retained by him until, and subject to, the final adjudication of the rights which are herein reserved in favor of sundry parties to the proper distribution of such balance.

It is therefore ordered, adjudged and decreed that the judgment rendered on the 23d of February, 1884, be affirmed at the costs of the defendant Tricou in both courts, subject to the reservation herein-above made in his favor; and that the judgment rendered in concurso on March 30, 1885, be amended as follows:

' Said judgment is affirmed in so far as it recognizes the privilege of Lawrence Keefe on the proceeds of the mill and engine, and in so far as i(; enforces the privilege of the Citizens’Bank as subrogee of A. Garriere & Sons on the proceeds of the sequestered crop of the year 1883; and that said judgment be amended in so far as it dismisses the intervention of llimel, syndic, which intervention is hereby rejected as in case of non-suit, with all the rights reserved in this opinion, and that said judgment he annulled, avoided and l'eversed in all other particulars.

it. is further ordered, adjudged and decreed that the privileges claimed by Bourgeois & Lefort, G. D’hote & Co., James Regan, S. P> Logan, wife of J. E. Logan, be rejected as in the case of non-suit, and that their respective interventions lie lienee dismissed at their costs respectively in both courts.


author: Ton», J. Manning, J. Todd, J.

text:
    No. 9347.
    Thomas M. Killelea et al. vs. Lawrence F. Barrett et al.
    The heirs of the wife, upon her death, become joint owners with the surviving husband of the community property; but it. is not necessary that such heirs or the succession of their mother should be made parties to a proceeding to foreclose a mortgage upon the property contracted during the existence of the community.
    They cannot, however, be divested of their title to one half of community lands by a sale of the same under executory process instituted after the death of tlieir parents and directed against them as minor heirs of their father to pay a comm unity debt, where they were represented in the proceedings by a tvtor ad hoe who never qualified by taking the prescribed oath. Whore what seems to be the entire record of the executory proceeding is in the transcript of appeal and no oath of the tvfor ad hoe appears therein, the case will be remanded to enable the party interested to supply the required proof, if it exists.
    APPEAL from the Civil District Court for the Pirrish of Orleans. Houston, J.

      James V. Coleman foi Plaintiffs and Appellees: *
    1. Upon the death of the "wife, the husband’s authority as head and master of the community is at an end. C. 0.2.506; 15 Ann. 636; 23 Ann. 638; 2i) Ann. 663; 32 Ann. 849; 33 Ann 584. Upon the dissolution of the community by death, one-half of the community property vests in the heirs and the other half in the surviving spouse, subject to the payment of the community debts. Ib.
    2. The dissolution of the community operates a complete vestiture of title of one-half the community property in the forced heirs of the deceased spouse, and the surviving husband has no power or authority to alienate1, encumber or affect the interest of the heirs. 15 Ann. 636; 23 Ann. 638; 29 Ann. 663; 33 Ann. 584.
    3. The dissolution of the community by the death of the wife is as effectual as a judicial dissolution during her life. 33 Ann. 585, and authorities cited.
    4. A community obligation is a debt or real charge upon the undivided half interest of the heirs in the community property, and like alt debts is extinguished by prescription. C. 0 3457, 3459, 3528,
    5.' To acknowledge a right upon real estate, or to renounce or "waive a prescription as to a real right, involves the power to alienate. C. C. 3462.

      6. CL'lie prescription which operates a release of a debt, has also tlie effect of releasing the owner of an estate from every species of real right to which the property may have been subject, if the person in possession of the right has not exercised it during the time required by law. O. 0. 3529.
    7. Plaintiffs have the undoubted right to institute this suit. 32 Ann. 8*19; 33 Ann. 7(59; 29 Ann. 665; 7 It. It 183.
    8. A tutor ail hoc must take an oath before he can legally represent a minor. C. C. 313.
    9. Where the probate court issues an ordoi of sale of succession property, until said order is set aside in the manner pointed out by law it has full force and effect, and no other court has power, jurisdiction orauthoriDyto seize the property pending tlie seizure by the probate court. 15 Ann. 636 j 31 Ann. 52; 32 Ann. 249.
    10. Where tlie law requires a tutor to be sworn, until he takes the oath prescribed by law liis acts on behall of tlie minois are nullities; and before tlie rights of minors can be legally divested, it must bo shown that the tutor claiming to represent them has taken the required oath. 0. C. 313 ; 11 R, It, 503 ; 12 R. R. 636 ; 3 Ann. 562; 6 L. R. 355; 7 L R. 543.
    11. Ileirs have ten years after majority to revendicate property illegally sold. Rents and revenues follow the real estate by right of accession, and partake of its nature. C. C. 499; 33 Ann. 769, 1178; 3 L. 549; 14 Ann. 169,
    12. Heirs need not tender price before suing to recover tlieir interest in property of which they have been illegally dispossessed. 33 Ann. 769.
    13. The liability of heirs to reimburse a bona fide purchaser only extends to that which is shown to have been expended for their account or inured to tlieir benefit. Where it does not appear that tlie purchase price was received by or benefited the heirs, there can be no tender required, nor can a recovery be had. 33 Ann, 769.

      Geo. L. Bright for Defendant and Appellant.
   The opinion of tlie Court was delivered by

Ton», J.

This is a petitory action, in which plaintiffs claim tlie ■ownership of an undivided half of certain city property, as heirs of their deceased mother, who was common in property with her husband, tlieir father. They claim, also, rents and revenues.

The main defense of Barrett, in possession of tlie property, is that he acquired tlie same by a judicial sale made under a proceeding to enforce payment of a mortgage debt contracted by tlie. father of plaintiffs during the existence of tlie community between him and tlie mother of plaintiffs.

There was judgment in favor of three of the plaintiffs, recognizing them as owners of three-fourths of one-half of the property described and referring tlie matter of rents and revenues to a notary for adjustment. Tlie claim of one of tlie plaintiffs (Mrs. Shaff) was rejected, .and she has not appealed. During the pendency of tlie proceedings in the lower court, Barrett died, and his legal representatives were made parties, who have appealed from the judgment.

The appellees became the owners of tlie property, or of tlie interest therein as claimed, by inheritance from their mother, who died in 1862.

This portion, however, descended to them burdened with its share ■of the community debts. The entire property was sold to pay a mortgage debt contracted during the existence of the community, on the 22d of July, 1871. This sale took place after the death of plaintiffs’ father, Tilomas Killelea, and was by executory process directed against his succession, purporting to be represented by his legal heirs, who were all then minors, except Mrs. Schaff.

The appellees having become the owners of their said interest in said property, and many years before the proceeding for its sale was instituted by Barrett, their right thereto could only be divested by a strict compliance with all the requirements of the law relating to judicial sales.

It must be borne in mind that plaintiffs, at the time their said interest was acquired and at the time it purports to have been divested, were minors. And it is a rule to which there is no exception that the property of minors cannot be alienated unless after a rigid observance of the legal formalities prescribed therefor.

The plaintiffs assail the title of the defendant—the sheriff’s sale, under which he claims on several grounds. Among others are these:

1st. That the proceeding was directed solely against their lather’s succession and not against their mother’s or them as her heirs.

IVe do not think this was necessary. As before stated, the debt was a community debt, to enforce which the proceeding was instituted. The sole debtor was Killelea, the husband, and the community property was subject to the debt, and it was sufficient to make the debtor if alive, or his legal representatives if dead, parties to a proceeding to coerce its payment. This is settled by the later authorities which we follow. 26 Ann. 230.

2d. It is also charged that the debt was extinguished by prescription when the sale took place, and the mortgage securing it had thereby ceased to exist.

The debt was contracted in 1859, but had been frequently acknowledged by Killelea, who besides, had paid the interest on the same regularly, and the mortgage had been seasonably reinscribed; and we think even were the debt prescribed, its prescription asserted for the first time after the sale could not affect the validity of the sale or its consequences. 23 Ann. 300; 20 Ann. 201.

3d. It is lastly urged that three of the plaintiffs—appellees herein— were not parties to the executory proceeding in any capacity whatever, and werehiot legally represented therein; that the tutor ad hoo, who purports to have boon appointed to then), never qualified by taking'the oath prescribed by law.

This presents a very serious question. In order to divest their title to the property, it was necessary that the proceeding should have been-conducted contradictorily with some one—either with the minors or with the succession of the debtor. The succession of Killelea was not represented by an administrator; hence the question is whether the minors were represented, or through them the succession. We find in the petition for the executory process it is stated that the three plaintiffs (appellees) were minors unprovided with a tutor, and it was asked that a tutor ad hoc be appointed to them. There is an order of the-judge making the appointment, but it nowhere appears in the record of that proceeding—which would seem to have been transcribed in its entirety in the transcript—that the appoincee ever took the oath proscribed by Art. 313 C. 0., that he ever accepted the appointment, or did a single act under it. Ilis qualification was essential to his authority to represent the minors.

The dictum in the case of Sadler vs. Henderson, referred to, is not opposed to this. That referred to a curator ad hoc appointed under-Art. 116 C. P. Such appointee is not required to take an oath. But where a party applies for the appointment of a tutor art hoc, for the reason doubtless that the minor can only or best bo represented in the proceeding by a tutor, such tutor, like all other tutors, must take the-oath required.

The counsel for the defendant invokes the legal presumption in favor of judicial sales as obviating the necessity of express or direct proof on this point. As stated before, where the property of a minor purports to be alienated under legal process, it devolves upon him who sets np such opposing- title to show affirmatively a full compliance with the requirements of the law. And such title is open to all objections of fact and law, without the same being specially pleaded.

Inasmuch, however, as this and other grounds of nullity against this sale were not pleaded in the court, below and the defendant put on his guard thereby, but urged only in argument before tliis Court so far as the record discloses; and as it is possible that the oath of the tutor may have been taken and filed, but unintentionally or accidentally omitted from the transcript, we think the defendant should not be concluded by the omission, but the case he remanded to enable him to supply the proof required, if it exists.

The presription of five and ten years pleaded cannot prevail. The first protects only against informalities in judicial sales and irregularities in the proceedings, connected therewith. Here the defect charged is of so radical a nature as to render the sale ap absolute nullity. As ■to that of ten years, it is not shown that ten years intervened between the majority of the plaintiff and the institution of this suit. The prescription pleaded against the right to recover the rents and revenues is equally unavailing. This was settled in suit of Walling’s Heirs vs. Manfield, 33 Ann. 1174.

The plea of want of tender of the price is likewise without merit, for two reasons: one, that the defendant as the mortgage creditor provoking the sale, was himself the purchaser, and retained in his own hands the entire price. 24 Ann. 473; 3 Ann. 343.

The other, that where the purchaser is in bad faith—as he would be in case the sale was an absolute nullity, and such nullity is here urged—no previous tender is necessary. Self vs. Taylor, 33 Ann. 769; Wood vs. Nichols, Ib. 744, 746; 24 Ann. 253; 31 Ann. 371.

It is, therefore, ordered, adjudged and decreed, that the’judgment, of the lower court be annulled, avoided and reversed, and that the case be remanded to the lower court to be proceeded with according to law, the appellees to pay the costs of appeal ; and those of the lower -court to abide the final issue of the case.

Dissenting Opinion.

Manning, J.

I dissent. There is but one question in this case that need be exapiined, viz whether the succession of Mr. Killilea was represented in the executory proceedings. 1 understand it is now settled that in foreclosing a mortgage upon community property given by the husband, it is not necessary to make the. wife’s heirs or representatives parties if she has died after the mortgage and before its foreclosure. In my opinion the wife’s heirs have no interest in the property until the debts are paid. These children are necessary parties only because the succession of their father has no administrator, and they are called in to represent his succession, and therefore the rules concerning the forced alienation of minors property are not involved.

The whole case turns in the opinion of the court on the non-production of the tutor’s oath. I think in such case the presumption should be that- the tutor did his legal duty, and at any rate it is one of those omissions to which the prescription of five years is applicable. It will be brittle thread for titles to hang on if the production of a loose slip of paper containing an oath is to determine whether the title be good or bad.

I think the defendant should have judgment.

On Application for Rehearing.

Todd, J.

Both parties have applied for a reheariug. We have attentively considered both applications, and have not changed our minds as to the correctness of our previous decree.

The point in those motions deserving the most serious consideration is that touching the prescription of iive years in the defendant’s application.

it is earnestly urged that the omission of the tutor ad hoe, appointed to represent a minor jiarty to an executory proceeding, to-take the prescribed oath, is an informality connected with or growing-out of a public sale, which is fully covered by the prescription mentioned; and wo are cited to the cases of Fraser vs. Zylice, 29 Ann. 534; Ruth vs. Citizens Bank, 28 Ann. 570; Mulholland vs. Scott, 33 Ann. 1043; Holt vs. Hart and Hebert, Ib. 673. We have carefully examined these decisions and they do not sustain the counsel’s proposition. It will be seen that the informalities there treated of, refer ex-cxclnsively to those occurring after judgment, and connected with and relating to proceedings pertaining to the execution of the judgment; as for instance the sale of minors property for less than its appraisement, want of notice of seizure, notice of judgment rendered by the defendant-, and waiver of notice of seizure and sale.

Now, in our opinion, a failure to give notice to a minor defendant in an executory proceeding, or his legal representative, is not an informality connected with or growing out of a public sale, but is something that is absolutely essential to the legal .effect of the order of seizure and sale itself. 6 R. 192; 9 R. 8 ; 14 Ann. 105.

This notice is equivalent to a citation in ordinary proceedings, and just as indispensable. Can it be pretended that a failure to cite a party in the latter proceeding would, in any way, relate to the sale of property under the judgment rendered in such proceeding"? Rather such failure would relate to the judgment and make it absolutely null. So in. executory process a writ of seizure and sale issued without jirevious. notice to the debtor, would be alike void.

The rehearing asked for is refused.

Manning, J. A rehearing should be granted.


text:
    No. 9458.
    Succession of Charlotte Piffet—Opposition of C. H. Tebault.
    A contract for over five hundred dollars may be proved by one witness and corroborating circumstances. Where the contract was to pay two thousand dollars for exclusive and undivided attention to a childless woman of large property who was apparently sinking and had made no will and ardently desired to make one, the intensity of her desire to-gain timo and strength to make «a will and the large property at her disposal, and the fact that the physician gave his undivided attention as the contract required, are corroborating circumstances sufficient to support the oath of one witness and establish the-contract.
    Whore one declares upon a contract he cannot recover upon a quantum meruit,, but while-testimony of value of services is inadmissible under the contract, it is admissible to-shew the reasonableness of the contract and that it is one likely to be made under the circumstances. The contract must first be proved, and then its reasonableness-may be shewn by proof that it was not grinding hut fair.
    The correct repetition of conversations is the most difficult feat of memory and of expression, and therefore the narration by a witness of tbe conversation of a dead person is the weakest of all evidence. The promise of a dead person to pay the debt of another cannot be proved by parol.
    APPEAL from the Civil District Court for tlie Parish of Orleans. Houston, J.

      H. 1{. Norman for Opponent and Appellant.

      T. Gilmore & Sons for the Executors, Appellees:
   The opinion of the Court was delivered by

Manning, J.

The executors of Charlotte Piffet filed a provisional account placing Dr. Tebault thereon as creditor for two undisputed items and allowing him $300 besides for attendance, upon the deceased in her last illness. lie. opposed it claiming two thousand dollars tor the last service and $352 for attendance upon Mrs. Knapp a niece of the. deceased.

The executors excepted that the opponent had set up a special contract for the. services during last illness and at the same, time claimed under a tjxumtum meruit and prayed that hq he required to elect, and this exception having been sustained, he elected to stand on the contract.

The sole witness to the contract was Dr. Tebault himself, hut his counsel insists that his testimony is supported by corroborating circumstances more than sufficient to bring the case within the rule of art. 2277 Rev. Civ. Code.

Mrs. Piffet was an aged woman with large fortune and without children. The inventory of her estate is over four hundred thousand dollars, the accumulation of her own thrift and good management. She liad suffered many years with cancer of the womb. Her death was imminent on the first of January 3884 when Dr. Tebanlt, sent for in haste, found her exhausted and apparently?'» extremis. His visit lasted thirty hours and he revived her, but had scarcely reached his home when he was recalled, found her again collapsed, and again resuscitated her.

She had made no disposition of her property and notwithstanding this neglect, it apj>ears that when confronted by death she earnestly desired to make a will. She adjured him to stay with and watch her, and to keep her alive, until she could get strength to make her will. He said he had other patients who needed his attention and he could not devote himself exclusively to her. Then she offered to give him two thousand dollars if he would abandon every other patient and attend to her alone, lie accepted the offer and gave her his undivided attention until the 37th. of the same month when she. died. She made her will on the 9th. and a codicil on the 11th.

He had to do much more than prescribe for her and watch her. She would not have a professional nurse. lie was attendant and nurse as well as doctor. The nature of the disease suficiently indicates the kind of services he. had to perform without going into the details supplied us by the record.

It is a. strong corroborating circumstance that this old and rich woman ardently wished for time and strength to dispose of her property, and the promise of an unusually large fee was a natural expíes, sion of that wish, a proof at once of the intensity of the desire and of the largess she was willing to dispense to attain its fulfillment. For what was that sum to one who coveted a few more days of life that she might dispose according to her own mind of that to the acquisition of which her life had been given ? A strong corroborating circumstance is the fact that Dr. Tebault gave up his other practice and devoted himself exclusively to Mrs. I’iftet, performing menial services even and watching her with unremitting attendance.

Several eminent physicians testified that the services of Dr. Tebanlt were fully worth the sum claimed. Their testimony was given after the details of those services of various kinds had been made by him accompanied by statements of the offensive developments of the disease. The testimony was objected to by the executors because the quantum meruit claim had been abandoned.

There can be no doubt of the correctness of the principle asserted by the executors that where a pi an tiff declares on a contract, he cannot recover on a quantum meruit. But the testimony, while inadmissible to prove the value of the services, is competent to shew the reasonableness of the contract. Having declared upon a contract, he must first have proved it, which we think he has done by his own oath .and corroborating circumstances, and then evidence that the contract was one likely to be made under the circumstances and was reasonable in itself was properly heard. Bright v. Metairie Cemetery, 33 Ann. 62.

We do not leave out of sight the suspicion with which legists have always regarded the influence of physicians and others upon a sick person, and the rigour with which jurists have annulled donations made under undue influence, art. 1489 Rev. Civ. Code. Domat Droit .Publie, lib. 1, tit. xvii, sec. 1 & 12. But that made it only the more becoming that proof should be tendered to shew that the contract set up is one that a sick person, circumstanced as was this ■testatrix, would naturally make, and that other men of the same profession as the opponent would think not exorbitant and not improper ¡to be accepted.

The claim preferred by the opponent for services rendered Mrs. Knapp rests upon a very slender basis. This'lady was the niece of the •testatrix, had been an inmate of her house previous to marriage, had been reared by her, and is one of her legatees. She was married in 1878. Mrs. Piffet paid Dr. Tebanlt’s bills for attendance upon Mrs. Knapp in 1879 and 1880. He presented his bill for 1881 audit was not paid by Mrs. Piffet, and he then presented it to Dr. Knapp. No further application to Mrs. Piffet for the payment of that bill was made, and considering her ample means and her business habits it is not unreasonable to conclude that had Dr. Tebault looked to her for it any longer it would again have been presented.

There is an attempt to shew that Mrs. Piffet bound herself to pay ■continuously for medical services to Mrs. Knapp in conversations had during the first years of the latter’s married life, but the narration of conversations correctly is the most difficult feat of memory and of expression, and of all evidence the narration of a w itness of his conversation with a dead person is esteemed in justice the weakest. Besides, this is an attempt to prove by parol evidence the promise of a deceased person to pay another’s debt, and that is textually prohibited. art. 2278 Rev. Civ. Code.

The judgment below was adverse to the opponent but with reservation of his rights to bring another action on a quantum meruit. We •think it is error. Therefore

It is ordered and decreed that the judgment of the lower court is reversed, and that the opponent C. II. Tebault have judgment sustaining his opposition so as to increase the item upon the executors’' account for medical attendance during last illness to two thousand dollars, and that the opponent’s claim for services rendered Mrs. Knapp which was disallowed by the executors is rejected at his costs, the succession paying the costs of the other item in the opposition and of appeal.