text:
    No. 1028.
    B. D. Woods & Bros. vs. Chas. J. Pickett et al.
    The part owner of a vessel, not interested in her carrying passengers and property for hire, is not liable as a commercial partner for debts incurred for her running expenses.
    The part owner of a vessel can not be held even to a pro rata liability on a draft drawn by another part owner in the name of the vessel and her owners, for an insurance of the vessel taken out for the benefit and security of a third person; unless ho has authorized, or has ratified the drawing of the draft, or profited by it.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J.

      Lewis & Bro. for plaintiffs and appellants.

      Garland & Dupré for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs sue Charles J. Pickett, C. C. Pickett, James Powers, W. R. Verlander, and Cleophas Comeau as owners of the steamboat Eleta, and as commercial partners engaged in carrying persons and property for hire.

Their demand is for an account of $233 for coal furnished said boat, and the amount of a draft given to the Hibernia Insurance Company, on and accepted by plaintiffs, for $640, being for insurance on “ the hull ” of said steamer, and signed “ C. J. Pickett, for steamer Eleta and owners,” date January 12,1876.

The only defendant before us is Cleophas Comeau. His answer is a general denial. There was judgment below for him, and plaintiffs appeal. In this court he pleads the prescription of one year against the coal account.

The questions presented for our decision are:

1. Was Comeau a part owner of said steamer, and a partner in the business of running her at the time these debts were contracted ‘i

2. If so, is he liable for them in whole or part ?

The testimony on the subject of ownership is voluminous; so much so that to even recapitulate it would transcend the limits of an ordinary opinion. It satisfies us that he was a part owner, and interested in the business of running said boat from the eleventh of June, 1875, and that Roy was simply a person interposed to hold title for him.

The joint owners of a vessel are not partners. But those engaged in running them to carry persons and property for hire are commercial partners. C. C. (old) 2796; 29 A. 315.

Debts incurred, therefore, for running expenses of such vessels are partnership debts, and as to such obligations each partner is the agent of the others, and their rights and obligations are governed by the ordinary rules of commercial partnership. Their liability is solidary.

But it is different with those who are simply joint owners. As we have said, they are not partners, or governed by the rules of partnership. One of these joint owners, as such, has no authority to bind his co-proprietors by drawing drafts or notes in their name; and they will not be bound in the absence of proof of authority so to do, or of some actual and resulting advantage. ■

Applying these principles to the case before us we find that Comeau as a commercial partner would be liable for the coal bill sued for, if contracted during the existence of his connection with the firm. But the defendant contends that Comeau’s connection therewith only commenced on June 11, 1875, and such is the fact. That all coal bought after that date was paid for by payments made thereafter. We find, on inspection of the account, that the amount of coal bought after June 11 was $320, and the sums paid thereafter $320. Defendant can only be charged for items after he became a partner, and is entitled to credit for all sums paid after that event, as it is reasonable to suppose they were paid out of the partnership fund. We think, therefore, that plaintiffs can not recover on this account. It is, therefore, unnecessary to notice the defendants’ plea of prescription.

As we have seen, the draft sued upon was drawn by “ C. J. Pickett, for steamer Fleta and owners,” and was for premium for insurance on her hull. This can not by its very terms be considered a partnership debt. It purports to be for account of the owners, who, as we have seen, are not partners. It is for insurance on the hull of the boat, which is not partnership property. The partnership was in the use of the boat. It had no insurable interest in the hull. If, therefore, Comeau is liable on this draft at all, it is for only one third the amount of his interest in the boat. But he is not liable for that unless, first, he authorized Pickett to insure the boat or draw the draft; or, second, has ratified his acts, or” derived profit or advantage therefrom.

It is not pretended that he has done either of the first named things.

Has he ratified Pickett’s acts or profited thereby? So far. as this record discloses, we find no act of Comeau from which we can deduce a ratification. It is shown that when Pickett bought this boat, and before he sold to Comeau, he borrowed $5000 from A. H. May, and gave him a mortgage on the boat. That in that act he agreed and bound himself to keep the same insured for May’s benefit. That the boat was so insured, and that the premium for which said draft was given was for a renewal of that policy for May’s benefit. The loss in such cases the policy declares shall be paid to May as his interest may appear. We do not see how Comeau could have profited by that policy had the vessel been lost. Certain it is that he has never drawn advantage or profit from it. Under the proofs in this case we think plaintiffs have failed to make out a case of liability on Comeau’s part for this draft or any part of it.

. The judgment appealed from is therefore affirmed with costs of both courts.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 1003.
    Board of School Directors vs. O. Delahoussaye, Sr.
    Up to the year 1877 the State tax collector was prohibited from paying over any school taxes collected by him, to any one but the treasurer of the School Board, and his payment of any portion of those taxes to the parish treasurer, prior to the year 1877, did not discharge him from liability for them. But when it appears that such payment of school taxes to the parish treasurer was mado by a collector in good faith, and was approved by the police jury, and inured to the benefit of the parish, the parish should re-imburse to him the amount thus unduly received.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Eontelieu, J.

      J. E. Mouton for plaintiff and appellant.

      Ed. Simon for defendant and appellee.

      Robert Martin for the parish, warrantor.
   The opinion of the court was delivered by

Spencer, J.

This suit is brought to recover of defendant the sum of $1971 46, the amount of parish school tax of 1873, collected by him as State and Parish Collector of St. Martin parish during the year 1874 and 1875.

The defendant does not dispute the collection, but claims to have paid over the amount to the parish treasurer of said parish, from whom he received a quietus. Defendant further claims that the parish of St. Martin is bound to warrant and indemnify him against plaintiff’s demands, and he prays that the parish be cited, and for judgment in warranty, etc. The parish answers by a general denial, and by averment that if the parish treasurer received said school collections, he had no authority so to do, and the parish is not bound by his acts, done outside the scope of his official duties. There was judgment for defendant, and plaintiff appeals. The facts which are material appear to be as follows:

Baker, the treasurer of the school board, had left the parish, and refused to receive the school funds so collected by defendant, who, thereupon, by advice of the district attorney, paid the amount of the school tax into the hands of Amy, the parish treasurer, in common with, and as other parish taxes, and took his receipt for the gross sum paid. It is shown to our satisfaction that the school tax was included in this payment to the parish treasurer. It is also shown that the police jury in open session on the fifth July, 1875, carefully examined and accepted said settlement between the treasurer and collector. There are but two questions presented for our decision: First, was the payment of the school tax to the parish treasurer a valid payment, and did it discharge Delahoussaye ? Second, if not, can he recover the amount thus paid in error from the parish of St. Martin ?

First. As to the authority of the parish treasurer to receive the school-fund tax. By section two of act 122 of 1874 tax collectors are expressly prohibited from turning over school taxes collected to any police jury or parish treasurer, or to other person than the treasurer of school board. This was the law in force up to 1877, and is that by which the rights of these parties are to be tested. Subsequent legislation in 1877, making the parish treasurer ex-officio treasurer of the school board, can not retroact so as to legalize the payments made in 1875. The collector was bound to await the appointment of another school treasurer if there was none, or to compel the reception of the money by him if there was one. His refusal to receive the funds could not justify the defendant in paying to one not only not authorized but forbidden to receive. We hold, therefore, that payment to the parish treasurer did not discharge defendant, and that he must account to the school board, which has, we think, undoubted right to require it.

Second. The evidence satisfies us that the defendant in good faith paid over the fund to the parish treasurer, and that the police jury approved and accepted that settlement, and that the people of the parish have profited by it. The money thus paid is either yet in the parish treasury, or it has been disbursed for the use of the parish. “He who receives what is not due to him, whether he receives it through error, or knowingly, obliges himself to restore it to him from whom he unduly received it.” O. 0. (old) 2279. Equity and good conscience forbid that the parish should thus enrich itself at the expense of defendant, who acted in this matter erroneously, but honestly. The parish should protect him, and promptly re-imburse to him or the school fund the amount thus unduly received.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed; and it is now decreed that the plaintiff do recover of the defendant, Onezephore Delahoussaye, the sum of $1971 46, with legal interest thereon from September 13, 1875, till paid, and costs; said sum to be paid to the treasurer of the school funds of the parish of St. Martin; and it is further decreed that the said defendant do have and recover from the parish of St. Martin the like sum ($1971 46), with like interest from same date, together with all costs of this suit.


author: DeBlanc, J. Spencer, J.

text:
    No. 1005.
    A. A. Guilbeau, Tutor, et al. vs. Tréville Thibodeau et al.
    An action to set aside a sale of real estate made by its deceased owner, on the ground of simulation, may be brought by the executor and forced heirs collectively, or by the heirs separately.
    The forced heirs of a deceased person, whose legitime is impaired by an alleged simulated sale made by the deceased, are not estopped from attacking the sale on the ground of simulation, but they can only annul the simulated sale to the extent that they are/orced heirs.
    The action against the vendee to annul a simulated sale is not prescriptible.
    The amendment to an answer which substantially changes the defense will not be permitted.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Fontelieu, J.

      Mouton & DeBaillou for plaintiffs and appellees.

      Felix Voorhies for defendants and appellants.
   The opinion of the court on the original hearing was delivered by DeBlanc, J., and on the rehearing by Spencer, J.

DeBlanc, J.

In 1867, on the thirteenth of August, Louis Alexander Potier appeared before a notary public, and signed an act in and by which he acknowledged to have sold to Tréville Thibodeau his plantation and some cattle, for the price of five thousand five hundred dollars. He died shortly after, leaving a testament made on the nineteenth of September 1866, and — by that testament — gave nearly all he owned to the grandchildren of his aforesaid vendee.

In this suit, plaintiffs — as forced heirs of Potier — attack, as being a simulation, the alleged sale of the 13th of August 1867, the only object of which — they charge — was to deprive them of their légitime.

Their action is resisted by defendants on the grounds:

1. That this suit being one in revindication of immovable property could have been brought but by the executor of the last will of Potier, and not by his heirs. In substance and in terms, plaintiffs’ action is one “ en déelaration de simulation,” and that it could have been brought by the executor and forced heirs collectively or by the heirs separately, there can be no doubt.

5 A. 578 ; 6 A. 223, 673; 15 A. 579,700, 641; 5 M. 145 ; 9 M. 351; 2 L. R. 81; 17 L. 118 ; 4 A. 500 ; 20 A. 209.

2. That plaintiffs are the heirs of Potier and can not be heard to allege his turpitude. In that capacity, they here claim — not'merely as the legal representatives of their ancestor, but from the law; and if they were not allowed to prove a simulation perpetrated to deprive them of their légitime, it would not be a difficult task to disinherit them.

15 A. 700 ; 12 A. 759.

3. That plaintiffs’ action is barred by the prescription of five years. If — as contended — the sale from Potier to Thibodeau was a simulation, Thibodeau had — not only no just title to the property apparently transferred, but no title at all, and it is evident that one whose possession springs from and is linked to a simulation to which he is a party, can not acquire by prescription.

The amended answer presented by Flaville Thibodeau was properly rejected by the lower court. In the original one he, as Treville Thibodeau, avers — in the most positive terms — that the act of the 13th of August 1867 evidences a real and valid sale, and — in his proposed amendment — he avers that said act, which has the form of a sale, which he himself continues to call a sale, was meant as a donation inter vivos from Potier to the grandchildren of Treville Thibodeau.

The only question which now remains to be determined is one of fact: is the sale of the 13th of August 1867, from L. A. Potier to Treville Thibodeau, a simulation? That it is a simulation can not be successfully disputed: the pretended vendor did not sell, nor intend to sell, the pretended vendee did not buy and no price was paid: the manifest and avowed purpose of the parties was to accomplish — by that act— more than the deceased ancestor could have accomplished by his last will, and that was to disinherit the plaintiffs.

In only one respect the judgment of the lower court is incorrect and must be amended: the property comprised in the simulated act should not have been decreed to belong to the heirs of L. A. Potier, but to his succession. The deceased could dispose and — it appears — has disposed of a portion of said property, and those who may have acquired rights under his will should not be concluded.

It is useless to examine the other and many defences suggested by the vigilant ingenuity and marked ability of respondents’ counsel. Those untenable defences have — for upwards of five years — upheld an attempted injustice and delayed the recognition and enforcement of a plain and incontrovertible right. That is long enough.

It is, therefore, ordered, adjudged and decreed that, in so far as it declares “that the property in question is that of the heirs of Louis Alexander Potier,” the judgment of the lower court is reversed.

It is further ordered, adjudged and decreed that the act of sale from Louis Alexander Potier to Tréville Thibodeau, passed before Omer Martin, a notary' public of the parish of St. Martin, on the 13th of August 1867, be and the same is hereby declared simulated and void, and that the-property therein described belongs to the succession of said Potier.

It is further ordered, adjudged and decreed that — as amended — the judgment of the lower court is affirmed; the costs of the appeal to be paid by respondents.

On Application for a Rehearing.

Spencer, J.

We are satisfied that the sale from Potier to Treville Thibodeau is simulated, and that it is without effect as to the forced heirs.

But a reconsideration of the question has led us to the conclusion that the plaintiffs can only annul said sale to the extent that they are forced heirs of their grandfather Potier. That beyond that limit they occupy the position of ordinary heirs, and are estopped by the deed of their ancestor, in the absence of a counter' letter. See Maple vs. Mitty, 12 A. 759 ; 4 A. 500, and cases cited.

We think, therefore, that our former decree went too far ; and that said sale should only be overruled and set aside to the extent of the fraction thereof for which said plaintiffs are forced heirs. But as the record does not enable us to fix with certainty the fraction for which plaintiffs are forced heirs, the case ought to be remanded to fix it.' The rehearing is granted.

On Rehearing.

Eor the reasons above assigned'it is ordered and decreed that the decrees heretofore rendered by the court below and by this be amended so as to read as follows: It is therefore ordered, adjudged, and decreed that the sale and transfer from L. A. Potier to Treville Thibodeau, of date August 13,1867, be and the same is hereby annulled and avoided, in so far as and to the extent that it affects the legitimes of the plaintiffs in this case, and that the said plaintiffs be decreed owners of the property so transferred to the extent of the fraction for which they are ' forced heirs of their said grandfather, and that this case be remanded for the sole purpose of ascertaining and fixing that fraction.

It is further ordered that appellees pay costs of appeal, and appellants those of the court below.

Mr. Justice DeBlanc adheres to the original opinion in this case.


author: 'Manning, C. J.

text:
    No. 1012.
    State ex rel. Valery Coce vs. J. A. Chargois.
    A district attorney ■who is a practicing lawyer, is qualified to act as judge ad hoc in the trial of a civil ease in which the judge is recused.
    A lawyer who having accepted the appointment of judge ad hoc to try a case, and entered on the trial, afterward refuses to go on with the trial, can not bo compelled by mandamus to proceed with the ease.
    ^PPLICATION for a mandamus.

      Jas. A. Chargois for defendant.

      John Clegg for relator.
   The opinion of the court was delivered by

'Manning, C. J.

A suit was instituted by the relator in the District Court for Lafayette, in which the judge of that court was recused. He therefore called on a practicing lawyer to try the case as judge ad hoc, who immediately qualified, and subsequently made sundry orders in the cause. The lawyer thus appointed is the respondent, who is the District attorney for that district. He fixed the cause for trial, but at the time appointed for trial, he recused himself, or was recused, because he was District attorney, and refused to proceed farther. Thereupon the relator applied to us for a mandamus, and upon a rule issuing to shew cause why it should not be granted peremptorily, he assigns for cause:

1. That he is already district attorney, and therefore can not be judge ad hoc, because he can not hold two offices of honor or profit at the same time.

This objection is not good. A practising lawyer who is selected to try a particular case, and who acts as judge merely pro hac vice, can not be said to hold an office. And he certainly does not hold one of trust or profit. His functions cease the instant the case is at an end, and are confined to a particular case. There can be no reason why in civil cases the prosecuting officer for the criminal docket should not try a case in which the judge is recused, provided he be a lawyer.

2. The respondent urges that the rightfulness of his recusation can not be inquired into by mandamus, but the party aggrieved should appeal.

If we were to hold that a judge ad hoc was an officer, whose failure or refusal to perform his duty could be taken cognisance of by us, in the same way and to the same extent that a judge of one of the inferior courts can, we should certainly issue the mandamus. In other words, if the respondent is right in recusing himself, on the theory that it is another office and he can not hold two offices at the same time, then we might issue the mandamus to him as an inferior judge.

But we refuse the writ on other grounds, viz because of the want of power in this court to compel a lawyer to try a case as judge if he chooses to refuse. The attorney who may be appointed is not obliged to accept the appointment. If he does accept, and even enters upon the trial of the case, he is not obliged to continue to the end. And what he is not obliged to do, we can not compel him to do. True, it is almost contra tonos mores to accept, qualify, sit, make orders, and then from caprice, or weariness, or other like cause, incontinently quit the bench, but we are without power to make him go back.

We believe in the present case it was not caprice, but a belief in the incompatibility of the two offices, that occasioned the respondent’s action. State ex rel. Fuqua vs. Brame, 29 Annual, 816.

The mandamus is refused at the cost of the relator.


text:
    No. 1002.
    State ex rel. Thomas W. Nelson vs. Alexander V. Fournet, Assessor, et al.
    A party can not be compelled to appear and answer to a suit brought against him in any other district court but that of the parish of his domicile.
    A mandamus will not issue to compel the parish assessor, and tax collector to assess a tax. Only the police jury of a parish have power to levy a tax.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Fontelieu, J.

      Breaux, Fenner & Hall for relator and appellant.
    (?. A. Fcmrnet for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

In the case of Nelson vs. parish of St. Martin, plaintiff obtained judgment against said parish on November 29, 1873, for $4500 and interest, and ordering “the board of assessors, or officers whose duty it is to assess taxes, forthwith to assess a parish tax at a sufficient rate per cent upon the assessment roll of the current year to pay said judgment, and that the tax collector proceed forthwith to collect said tax, etc.” On December 27, 1877, Nelson presented his petition “ to the judge of the third judicial district court in and for parish of St. Martin,” reciting the above-mentioned judgment, and averring that the proper officers of St. Martin had neglected and refused to levy and collect the tax, as therein directed. Wherefore he prays that the parish assessor and tax collector of St. Martin be cited to appear at the court in the town of New Iberia, in the parish of Iberia, there to show cause, on January 2, 1878, why a mandamus should not be made peremptory, directing them to assess and collect a tax as directed by said judgment, etc.

The assessor and collector appeared at New Iberia and filed numerous exceptions and defenses, among which it will only be necessary to notice two.

1. They except that they are citizens and officers of St. Martin, and that the proceeding against them is addressed to the district court of St. Martin, and that they can not be cited and required to appear and answer in the parish of Iberia.

2. That they are without capacity to stand in judgment, for the reason that it is no part of their duty or of either of them to assess and levy parish taxes, that duty belonging exclusively to the police jury. The collector averring that he has no authority to collect until taxes have been legally imposed. We think both these exceptions well taken.

There is no law or authority authorizing the judge of the third district court in and for parish of St. Martin to compel parties to suits pending in that court to appear before him in another parish. The proceeding was coram non judice, and void.

It is equally fatal to relator’s proceeding that he has not taken it against the necessary parties. The dutij of the parish assessor is to list and value property, not “to assess taxes” thereon. The police jury should have been cited as the only “ officers whose duty it is to assess taxes.”

It is unnecessary to pass npon the constitutional questions raised as to the power of the Legislature, in a case like this, to repeal the law authorizing the levy of a tax to pay judgments, after such judgments have been rendered.

For the reasons now stated the judgment appealed from is affirmed at costs of relator.

Mr. Justice DeBlanc is recused in this case.


author: DeBlanc, J.

text:
    No. 994
    Mayor et al. of Breaux’s Bridge vs. Valérien Dupuis.
    Where the charter of a municipal corporation requires the mayor’s sanction to all the enactments of the Board of Selectmen, such enactments will he inoperative unless signed by the mayor.
    The promulgation of an ordinance enacted by the Board of Selectmen of Breaux’s Bridge, by merely posting the ordinance, is without effect, when the ordinance has not been signed by the mayor, and by the secretary of the board.
    No law or ordinance passed by a town council can have any binding effect unless promulgated and preserved in the English language.
    When the fact is denied that a certain ordinance has been enacted by a town council, the fact can only be proved by the deliberations of the council, and their promulgation, duly attested.
    A PPEAL from the Parish Court of St. Martin. Bassett, J.

      F. Voorhies for plaintiffs and appellees.

      Mouton & BeBaillou for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

This suit is brought to recover from the defendant the sum of fifty dollars, which plaintiffs claim by virtue of an ordinance adopted by the Town Council of Breaux’s Bridge, on the 3d of December 1877. That ordinance was written, presented, promulgated and preserved in the French language, and is not signed by the mayor.

The tenth Section of the act amending the incorporation of the town of Breaux’s Bridge provides “ that the mayor shall sanction all laws and ordinances passed by the Board of Selectmen.” That sanction must be expressed otherwise than by suing to recover the amount of a license imposed by said laws and ordinances, which are not published in any official paper, but merely placarded in different parts of the town. The council’s enactments and their promulgation must bear the signatures of the Mayor of the Town and of the Secretary of the Board. 'Without at least one of the signatures of those two officers, no one could be legally informed of the adoption of those enactments, and —without both of them — the promulgation by mere posting was a vain formality.

In this instance, to prove a fact which must be shown by the book to be kept by the Secretary, he had to be called and examined as a witness, and testified that two of the members of the Board have voted for the ordinance. When denied, such a fact can be established but by the deliberations of the Board and their promulgation duly attested by the signatures of the mayor and secretary.

The Council’s ordinance imposing the license sought to be recovered is a law, a legislative proceeding, and — though its promulgation in the language understood and spoken in the locality wherein it was adopted was proper and authorised, the 109th article of the Constitution of 1868, which differs from Sect 15 of title VI of the State Constitution of 1812, commands that all laws and legislative proceedings shall be promulgated and preserved in the English language.

In the case of Loze vs Mayor reported in the 3d La and relied upon by the counsel representing plaintiffs, this court held that only the laws passed by the Legislature of the State were to be promulgated in the English language. That decision was certainly correct, as then such a promulgation was limited by the Constitution to “-all laws that may be passed by the Legislature."

That plain provision of the Constitution of 1812 has been intentionally changed by as plain a provision of the Constitution of 1868, and now — unless promulgated and preserved in the English language — no law or ordinance, whether passed by the Legislature or a Town council —can have' any binding effect.

C. of 1868, art 109.

It is therefore ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and plaintiffs’ demand rejected with costs in both courts.


author: Mabr, J.

text:
    No. 1031.
    Jacob C. Van Wickle vs. O. H. Violet and Wife.
    It will be presumed that the community of aenuets and gains exists between the husband and wife until the contrary is shown.
    Neither the wife nor her separate property can be held liable for supplies furnished to her husband for the cultivation of her plantation, unless it be proved that the wife herself cultivated her plantation, or that it was cultivated for her account and benefit. The mere fact that the creditor kept the account for the supplies against the husband as agent of the wife, does not prove the agency.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J.

      E. Simon and James, M. Moore for plaintiff and appellant.

      Garland <& Dupré for defendant and appellee.
   The opinion of the court was delivered by

Mabr, J.

This is a suit against husband and wife, on a note drawn by them jointly to their own order, and by them indorsed, secured by mortgage of the same date, March 7,1872.

The petition charges that the wife was separated 'in property from her husband by judgment; but when this was rendered, or in what court, there is nothing in the record to show.

Default was taken against Violet. Mrs. Violet, after denying all the ^allegations of plaintiff’s petition, except that she signed the note sued on, specially denied her liability for the amount of the note, as it was •given to secure advances made and to be made to her husband ; .and she ■also denies her liability on the mortgage granted to secure the note, alleging that the property mortgaged is paraphernal, and was owned by her before her marriage.

The evidence consists of the note and mortgage, the deposition of Mouton, the mortgagee, and the testimony of Félix Dessan, the father ■of Mrs. Violet, who proves that Violet had no means, to his knowledge.

Mouton testified that the note and mortgage were given to secure advances made and to be made for the plantation of Mrs. Violet; and "that all his dealing was with Violet as agent of his wife. He attached to his deposition an account current, kept in the name of “O. H. Violet, agent,” beginning May 29,1871, footing on the debit side $2100 55, credits §1117 11, balance brought down to May 31,1873, $983 44, with memorandum at the foot, “Hold your mortgage for $1000, as collateral ■security.”

The judge of the district court was of opinion that the evidence was not sufficient to charge Mrs. Violet; and we are of the same opinion.

The B. C. C., 2398, declares that “the wife, whether separated in property by contract or by judgment, or not separated, can not bind herself for her 'husband, nor conjointly with him, for debts contracted by him before or during the marriage.”

The answer of Mrs. Violet puts at issue all the allegations of the petition except that she signed the note. The legal presumption is that ■community exists in all cases, where it is not excluded by contract, or dissolved by judgment: and it is also a legal presumption that all debts contracted during the marriage are debts of the community, for which the wife is forbidden to bind herself or her property.

The fact that Mouton dealt with Violet as agent for his wife by no means proves that he actually was her agent, or that he had authority to bind her. The paraphernal lands of the wife might be cultivated by the husband for his account, or for account of the community; and in neither case would the wife be liable for expenses and debts incurred.

In order to recover of the wife there must be proof that the consideration inured to her separate benefit. Conrad vs. LeBlanc, 29 An. 124, and cases there cited. It is not proven that l\lrs. Violet cultivated any plantation, or that any was cultivated for her accourt and benefit.

There is nothing in the record to rebut the presumption that community existed between Violet and his wife; and that the debt is one for which she is forbidden by law to bind herself or her property.

The judgment appealed from is therefore affirmed with costs.


author: Spenoer, J.

text:
    No. 1024
    A. Tertrou vs. C. C. Durand et al.
    The purchaser at public sale of succession property on which he has a first special! mortgage, is entitled to retain possession of the purchase price, on executing-his bond with solvent security in favor of the administrator, for a sum to be fixed by the court, conditioned that he shall pay such sums as maybe ascertained, on a settlement of the succession, to be payable by preference to him out of the proceeds of the property so purchased by him, up to the amount of his bid.
    The institution of executory proceedings on a mortgage note will interrupt prescription of the note, unless the proceedings are dismissed on motion of the-plaintiff.
    ^PPEAL from the Parish Court of St. Martin. Bassett, J.

      J. A. Breaux and L. J. Gary for plaintiff and appellee.

      F. & M. Voorhies and F. Simon for defendant and appellant.
   The opinion of the court was delivered by

Spenoer, J.

This case was before us last year, and is reported at page 506, 29 An., where the objects and purposes of the suit are fully stated, and need not be here repeated. The case was then remanded, and is now before us after having been tried, resulting in a judgment for plaintiff, from which this appeal is taken.

The evidence shows that Tertrou is the holder of two special mortgages on the property sold, to wit: that in favor of LeBlanc, for $2816, and that in his own favor for about $16,879 60. These are the first special, and, so far as appears, the only special mortgages, on the property. At the probate sale of the succession of Charles Durand, Jr., certain lots (described by plaintiff) of the property subject to his mortgages were adjudicated to Tertrou for $10,134. The sheriff and C. C. Durand, administrator, demanded of him, eo instanti, the full amount of his bid, in cash. He claimed the right, as first special mortgage creditor, to retain the amount of his bid until the final liquidation and settlement of the estaté, upon giving security for such amount as might be fixed as preferred to him. The sheriff, thereupon, at once re-offered the property, without delay, and the same was purchased by C. O. Durand, the administrator, and John Durand, heirs of the deceased, for the sum of $2200. Under-the view we have taken, this second adjudication is void. Tertrou was entitled to retain the amount of his bid until the amount of claims preferred to his, and exigible out of the property, was ascertained. There is a large amount of property which has not been sold, and which jnay, perhaps, suffice to satisfy all antecedent privileges and general mortgages. The defendants have pleaded the prescription of five years against the Tertrou claim. It is admitted that Tertrou, in July, 1872, •took executory process.on his notes and mortgage, which was duly •«erved on the administrator. This process was enjoined, and it is said that Tertrou voluntarily dismissed and abandoned it. We find that the' •order o£ dismissal of date May 29,1877, was rendered on motion of O. O. Durand, administrator, and not on motion of Tertrou. This executory proceeding and the injunction during its pendency interrupted pre■scription, and it began to run ele novo only from that date. The plea of prescription is, therefore, not sustained.

We think the judgment appealed from is correct, except that it •should have fixed the amount and conditions of ihe bond to be given 'by Tertrou. It should be amended in that respect.

It is therefore ordered, adjudged, and decreed that the judgment ■appealed from be amended, as follows: that before the sheriff delivers 'the deed and possession of said lands to Tertrou, and. as condition precedent thereto, the said Tertrou shall execute, with good and sufficient ■security, in favor of the administrator of estate Charles Durand, Jr., liis bond in the sum of seven thousand five hundred dollars, conditioned that he will pay and satisfy such sums as may be fixed and ascertained on settlement of said estate to be payable by preference to him out of the proceeds of the lands so purchased by him up to the amount •of his bid, said bond to be approved by the parish judge of the parish ■of St. Martin.

It is further ordered that, as thus amended, said judgment be affirmed. The costs of appeal to be paid by appellee.


author: Manning, C. J. Mare, J.

text:
    No. 1009.
    Ursule Broussard vs. Leo Ditch and Sheriff.
    TVlicn a succession owes no debts, and is composed exclusively of communityproperty.and there is a surviving spouse, an administrator should not be appointed; and if appointed, a sale provoked by him of the property maybe enjoined by the surviving spouse.
    ^PPEAL from the Parish Court of Yermilion. Kibbe, J.

      R. P. O’Bryan for plaintiff and appellant.

      F. R. King for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

Leo Ditch the elder, husband of the plaintiff, died in 1867, leaving several minor children, of whom his widow, their mother, qualified as natural tutrix. His property was inconsiderable — about ■twelve hundred dollars in value — and was all community, and all movable, and he owed no debts. The plaintiff qualified as natural tutrix to 'her children, and has not married again.

Leo, the eldest child, attained majority two or three yeai’s ago, and applied for administration of his father’s estate. Opposition was made-to it by his mother, the surviving widow in usufruct and natural tutrix of the -other children, upon various grounds, one of which is that there-was no necessity for an administrator to be appointed, since she in her capacity of tutrix was doing, or had done, all that was necessary to be-done by any representative of the succession. Nevertheless her opposition was rejected, and the applicant was appointed, and she has brought, her appeal from that judgment before us in another case.

The administrator, thus appointed, applied for and obtained from the parish court an order of sale of the whole property, and the widow injoined the sale thus ordered. That is the present suit.

What possible grounds can be supposed to exist to justify an order of sale of property thus owned and situated, we are at a loss to conjecture. The father had been dead nearly, if not quite, ten years when the application for administration was made. No creditor asked for an administration, for there were none. The property was in the possession of the widow, who owned absolutely one half of it, and who as usufructuary was entitled to the possession of the other half. A sale of her moiety, under the circumstances developed in this case, would have-conveyed no title. A sale of the children’s moiety would have imperilled their scanty heritage. What that heritage was, and how acquired, the widow herself shall tell, as on the witness stand she confronted the first fruit of her womb, who was seeking to despoil her of her only support;.

“Leo Ditch jr. is my son, issue of my marriage with Leo Ditch Sr. * * * We were married, Leo Ditch and I, twenty-five years-ago last January. He died of yellow fever in Oct. 1867. The only property he left at his death was cattle, four jars, one spinning wheel, one shot gun and one mattrass. I was told that he branded thirty calves, the year of his death. I sold the calves every year to support and maintain the children, also some old cows and a very few beeves. I never kept any account of the number. Leo Ditch can say better than I can, for he is the one who always sold them for me, except the last year. I can not say whether there were any debts due my husband or-not at the time of his death. I can not say either, whether my husband owed any thing or not when he died. He had nothing but his clothing-when we married, and not much of that.”

On cross-examination she says she spent the money realized by the sale of 'the cattle in support of the children, such as their food, schooling, books, medicines and doctor’s bills. She owned at the time of her marriage six cows, a branding iron, and ten dollars in specie, and with the memory for small matters that characterizes those in her lowly condition, and the naivete that is both a consequence and an evidence of the-frank simplicity of her nature, she says that she gave the specie to her young husband who bought a cow with it.

As he had nothing, the whole of the stock must have been the issue of the six belonging to his wife, the one bought with her money, and those bought subsequently with the profits, if any were thus bought.

The case resembles that of Burton v. Brugier, recently decided by us, ante, 478, and the principle of law controlling it is well established. When the succession owes no debts, and is composed exclusively of community property, and there is a surviving spouse, an administrator should not be appointed, and iE appointed, a sale provoked by him of the property is properly prevented by an injunction by the owner and usufructuary. In that case, damages were awarded the widow against a purchaser of the property under circumstances very like these, who had evicted her by violence. The arrest of the sale by the process used in this suit has probably saved another purchaser from a similar fate. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and the injunction sued out by the plaintiff is maintained and perpetuated, it is further adjudged that she have and recover of the defendant Loo Ditch the costs of both courts.

On Applic.tion roe Rehearing.

Mare, J.

Counsel for appellees bases his application for rehearing mainly on the ground that our decree disposes of the case on the merits; whereas the judgment appealed froin was rendered on exception to the jurisdiction of the parish court ralione materias.

The parish court erred in maintaining this exception. That court had granted an order of sale, at the instance of Leo Ditch, in bis capacity as administrator; and no other court had jurisdiction to enjoin that sale.

We have decided that Leo Ditch is not administrator; and he can not proceed with the sale. There is no issue of law or of fact upon which the order of sale enjoined in this case could be enforced or justified ; and as the parish court had jurisdiction to grant the injunction, there is nothing now to be tried and the injunction is perpetuated, ex necessitate.

The rehearing is refused.


text:
    No. 1030.
    State ex rel. Merchant vs. Taylor Daspit et al.
    ■Whore a tax collector is superseded, and his successor collects part of the taxes embraced in the tax rolls, and blank licenses put into his hands, the outgoing collector and his sureties will be liable only for tho amount collected by him, and not accounted for; which amount must be proved by the State.
    An attorney in fact can not bind his principal as surety, unless he is specifically authorized to do it.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Fonielieu, J.

      W. B. Merchant for plaintiff and appellee.

      E. Simon, J. E. Mouton, L. J. Gary, and G. A. Fournet for defendants and appellants.
   The opinion of the court was delivered by

Mabr, J.

This is a suit to recover of Taylor Daspit, tax collector of the parish of St. Martin, $22,356 88, for alleged defalcations ; and against his sureties, Joseph Gautreau and Mrs. Marie Amólie Béraud, and Louis Laloire, her husband, $20,000, on the bond in which Gautreau and Mrs. Laloire were sureties, each for $10,000.

Daspit was appointed tax collector for the parish of St. Martin, in March, 1875. He gave bond, with Joseph Gautreau and Mrs. Laloire as sureties, each in the sum of $10,000. He collected the taxes of 1870, 1871, 1872, 1873, 1874; and, as Jumel, Auditor, testifies, “ he paid the same into the treasury, and his accounts appear upon the books as settled.”

The rolls for 1875, for taxes assessed, and licenses furnished him, amounting to $22,356 8S, were placed in his hands ; and the object of this suit is to make him and his sureties liable upon the ground that he failed to account for any part of this amount.

The proof shows that on the sixth April, 1876, Numa Bienvenu was appointed tax collector for St. Martin ; and that he collected the greater part of the taxes for 1875.

We think that where a tax collector continues in office, no proof of defalcation on his part is necessary beyond the tax rolls and licenses placed in his hands ; and that he is bound to account; and in default of his accounting he will be legally liable for the whole amount. But it is manifest that where the tax collector is superseded, and his successor collects part of the taxes, the out going collector and his sureties are liable only for the amount collected by him and not accounted for; and the tax rolls, and blank licenses put in his hands would not be sufficient evidence either against him or his sureties.

It appears from the testimony of Jumel, the Auditor, that Bienvenu, the successor of Daspit, filed affidavits with the Auditor, showing that Daspit collected part of the taxes of 1875, in all $8102 38. But this is merely Jumel’s statement of what the affidavits of Bienvenu were; and this is mere hearsay. Bienvenu Should have been called as a witness.

In 1870, Mrs. Marie Amélie Béraud, wife of Louis E. Laloire, and her brother, Felix Béraud, and her sister, Eugenie Amelia Béraud, gave to Louis E. Laloire a power of attorney which is quite full. It does not, however, contain any power or authority to the attorney to bind his ■constituents as sureties, for any purpose whatever.

Under this power, Laloire signed his wife’s name, five years after its date, to the official bond of Daspit as tax collector. It was a gross abuse of the power, and of the trust and confidence reposed in the husband by the wife. It could not have entered into the contemplation of the parties, in 1870, that the power then granted, evidently to enable the husband to manage his wife’s business and for her interest, would authorize him to bind her as security for others, especially for a tax collector appointed in 1875, five years after the date of the power.

Mrs. Laloire was not one of the sureties for Daspit in his official bond ; and she should not have been accepted as such.

The judgment of the district court was in favor of the State, against Daspit, for $22,356 88, subject to a credit of $3310 35, of the taxes of 1875, proven not to have been collected ; and against Joseph Gautreau ■and Mrs. Marie Amélie Béraud, wife of Louis E. Laloire, each for ten thousand dollars, with recognition of mortgage on their real estate, from the date of the bond, March 16, 1875: and all the defendants •appealed.

As we have seen, the legal presumption which would have existed against the tax collector that he was bound for the whole of the tax rolls and blank licenses furnished to him can not be invoked in this case. The taxes of 1870, 1871, 1872, 1873,1874, collected by Daspit, were fully accounted for. The taxes of 1875 were collectible in 1876 ; and on the ■sixth April, 1.876, Bienvenu was appointed the successor of Daspit: so that it was impossible for Daspit in his official capacity to have collected the taxes of 1875.

As the State had deprived him of the legal right and power to collect the taxes, by appointing a successor, it was incumbent on the State to show, by proof, the amount of taxes collected by him. The only proof on that subject is the Auditor’s testimony of what is -shown by affidavits of Bienvenu, the successor of Daspit, part of the records of the Auditor’s office, neither the originals nor copies of which were produced. The State should have called Bienvenu and the taxpayers, as witnesses to prove the amount of taxes collected by Daspit up to the sixth April, 1876, in order to have held the sureties in his official bond, or the sums collected by him after the appointment of his successor,, not accounted for by him, to have recovered of him alone.

The district court should have released Mrs. Laloire from liability, because she was not one of the sureties on the official bond of Daspit r and there should have been judgment of nonsuit against the State, and in favor of Daspit and Gautreau.

It is therefore ordered, adjudged, and decreed that the judgment of the district court appealed from be annulled, avoided, and reversed r and proceeding to render such judgment as should have been rendered by the district court, it is further ordered, adjudged, and decreed that there be final judgment against the State, in favor of Mrs. Marie Amélie Bsraud, wife of Louis E. Laloire, rejecting the demand against her;-, and that there be judgment against the State, in favor of Taylor Daspit and Joseph Gautreau, dismissing the demand against them respectively as in case of nonsuit, with costs in both courts.


author: Marr, J.

text:
    No. 1010.
    Queyrouze & Bois et al. vs. P. E. Thibodeaux et al.
    In an action to annul a dation en paiement of certain property worth more than $500-the district court has jurisdiction, although the debt due the creditor who sues to annul is loss than S500.
    A dation en paiement of property unaccompanied by its delivery, is void.
    A dation enpaiement made by a father to his children, by which he divests himself of all means of support, is void.
    A dation enpaiement made by a debtor which leaves him nothing with which to pay his other debls, thus making him insolvent, is void.
    The action to annul a dation en paiement which was simulated, and thus void abinitio, is not subject to the prescription applicable to the dispositions of property that are real, but fraudulent as to credbors.
    APPEAL from the Third Judicial District Court, parish of St. Martin, Fontelieu, J.

      Mouton & Martin for plaintiffs and appellees.

      L. J. Gary for defendants and appellants.
   The opinion of the court was delivered by

Marr, J.

. In August, 1876, Queyrouze & Bois obtained judgment in the parish court of St. Martin, against O. E. and Paul E. Thibodeaux, in ■ solido, for $383 01 with interest and costs ; and in May, 1877, Bodet & Gueydan Bros, obtained judgment in the district court of the same par- ■ ish, against the same parties, for $729 96, with interest and costs.

These creditors, and Larose, a creditor by open account, brought suit in the district court of St. Martin, against Paul E. Thibodeaux personally, and as tu:or of his minor chillren, and against other persons-his children either oí age or emancipated by marriage, to have declared null a certain elation en paiement made by him to his children, by notarial act of date 12 January, 1871: and to'subject the property given in payment to their respective judgments and claims.

The petition charges, substantially, that Thibodeaux was indebted to Queyrouze & Bois for merchandise sold to the commercial firm of which he was a partner from January to June, 1873 : to Larose for merchandise sold 29 January, 1873 ; and to Bodet & Gueydan Bros, for merchandise sold during the year 1873 :

That Thibodeaux “ pretends to have sold and did pass an act of sale by elation en paiement, to his minor children,” for the sum of $1800, all his property, movable and immovable, consisting of several tracts of land, domestic animals, etc.:

That this pretended elation was made and effected by fraud and collusion, for the purpose of defrauding petitioners: That it is null and void, for the reason that no previous inventory or appraisement of the property had been made: That the parties appearing as parchaseis were, and some of them still are minors, not emancipated ; and all such contracts are null and void ab initio.

That since said pretended dation Thibodeaux has continued to be and is still in the undisputed possession of the property, the value of which far exceeds the price mentioned. Various other causes of nullity are set up, among others, the incapacity of the tutor to contract with the minors: the failure of Thibodeaux to have the rights of the minors fixed, by administration of the succession of their mother; and the want of consideration.

The prayer is that the pretended elation en paiement be declared to have been made in fraud of the rights of petitioners, and to be null and void ab initio.

Defendants answered by general denial; and they afterward pleaded the prescription of one and three years, in bar of plaintiffs’ action.

The judge of the district court was of opinion that the claim of Larose was subject to the prescription of three years, and was barred. The decree was that the dation be avoided and annulled, in so far as regards the judgment claims of Bodet & Gueydan Bros., and Queyrouze & Bois : and the defendants appealed.

Our attention is called to the fact that the demands of Larose, and Queyrouze & Bois are, each, for less than $500 ; and it is urged that the district court was without jurisdiction as t.o them. This would be true if the object of the suit had been to recover of defendants the amount of these claims : but plaintiffs had no such object; and they prayed for no other judgment than one declaring the nullity of the dation. The amount in dispute was the value of the property.

The claim of Larose may be prescribed ; but the plea of prescription lu this case was against the action of plaintiffs: and that action was not to recover the money due them; but for the nullity of thé dation.

It was proven that Thibodeaux continued to live in the same house, and with all his children, as before the dation ; so that there was no apparent change of possession. The mere description of the property, •aggregating 436 superficial arpents, one of the tracts, at least, cultivated as a plantation, fronting on the Teche, to say nothing of the buildings, fences, agricultural implements, horned cattle, horses, colts, mules, hogs, leaves no doubt of the insignificance of the price ; and it can not be considered as real or serious. Four of the children wore minors at the time the dation was made, and two were married women. The act provides that tire property shall remain in common, en communauté, until the majority of the minors, one of whom is now about thirteen years of age.

There is room for grave doubt as to the reality of the indebtedness of Thibodeaux to his children ; and this doubt is increased by the fact that there has been no administration of the succession of their deceased mother, no inventory, no proceedings establishing any indebtedness of their father to them.

The law forbids the giving' in payment, by an insolvent, to one •creditor to the prejudice of others, any other thing than the sum of money due ; and the proof in this case is that Thibodeaux, by this dation •attempted and intended to vest in his children a title to all that he had, reserving nothing whatever to himself. Living in the house with his family, all his children, himself the head of the family, a mere paper conveyance would not be such a delivery as is indispensable to the giving in payment; and the stipulation that the entire property should remain in common until the majority of the minors indicates clearly his intention to divest himself of the title and control nominally only, while in reality he would enjoy the benefits of actual ownership, and keep his family with him as he has continued to do. We entertain no doubt that this dation was a pure simulation : that it was void for want of delivery : R. C. C. ■2656 : that it was also void, because the effect, if it had been real, would have been to divest the father, the head of the family, of the means of support, it would not have left him a bed or a chair : that it was void because he retained nothing with which to pay his debts, and it made him insolvent; and that the action to have it declared void ab initio, as it really was, is not subject to the prescription applicable to conveyances •and dispositions of property, real but fraudulent as to creditors.

Tne rights of the children of Paul E. Thibodeaux, such as they existed prior and up to the date of the elation en paiement, 12 January, 1874, will be in no manner affected by this decree, and are reserved just as they were at that time and as they would have been if no suoh dation had been made.

For the reasons herein stated, the judgment appealed from. is. affirmed with costs.


author: Mark, J.

text:
    No. 999.
    Edward Foreman vs. W. G. Saxon et al.
    A wife, even separate in property, is incapable of either buying or selling property, unless her husband concurs in tho act, or yields his consent in writing.
    The record of a written, agreement to sell certain property does not amount to a sale of the property.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Fontelieu, ■ J.

      M. J. Foster and D. Gaffery for plaintiff and appellee.

      Fred. Gates for defendants and appellants.
   The opinion of the court was delivered by .

Mark, J.

Mrs. Pecot, the owner of a plantation, the legal title to which stood in her name, agreed to transfer one undivided third of it to Mrs. Mallon, in consideration of the abandonment by Mrs. Mallon of certain suits and claims affecting the property. This agreement was dated April 8,1876, and was recorded on the eighth March, 1877.

Mrs. Mallon transferred her interest in this, and certain other property, to Edward Foreman, for the price of fóSOOO ; and this transfer was recorded on the seventh March, 1877, the day after its date.

Mrs. Pecot, by notarial act, reciting the agreement between herself and Mrs. Mallon, and the performance by Mrs. Mallon of her part of that agreement, conveyed to Edward Foreman, assignee of Mrs. Mallon, one third of'the plantation, fixed and designated by metes and bounds - and this title was recorded on the twenty-first March, 1877, the day after its date.

On the -fifth March, 1877, ~W. G. Saxon caused to be recorded a decree of this court, rendered in June, 1874, in the suit of Mallon and wife vs. Gates, condemning Mrs. Mallon and her sureties to pay to Gates S5P0 in damages for the wrongful obtaining of an injunction. Saxon was one of the sureties ; and on the ninth March, 1877, he caused execution to issue against Mrs. Mallon, on this decree, in his favor as subrogee, of Gates, under which the sheriff seized and advertised for sale the one third of the plantation acquired by Mrs. Mallon under the agreement of April 8,1876.

Foreman enjoined the sale, claiming to be the owner, in virtue of the transfer to him by Mrs. Mallon, and the subsequent conveyance by Mrs. Pecot. The district judge was of the opinion that the recording of the decree oí' this court, on the fifth March, 1877, created a judicial mortgage in favor of Saxon, but that he could proceed to enforce it only by the hypothecary action ; and he perpetuated the injunction, “reserving to defendant his right to proceed by the hypothecary action.” Saxon appealed from this judgment; and Foreman, appellee, in answer to the appeal, prays that the judgment be so amended as to strike out that part of it reserving to appellant the right to proceed by the hypothecary action.

Appellant maintains that the transfer by Mrs. Mallon to Foreman is absolutely null and void, because it was made without the authorization of her husband; and that it was fraudulent and simulated.

The record contains no evidence of fraud or simulation. The price was $3000, for which Foreman gave to Mrs. Mallon his note, bearing eight per cent interest from date ; but this does not establish either fraud ■or simulation.

The Bevised Civil Code, article 122, declares that “the wife, even when she is separate in estate from her husband, can not alienate, grant, mortgage, acquire, either-by gratuitous or incumbered title, unless her husband concurs in the act, or yields his consent in writing.”

The prohibition to acquire is as absolute as the prohibition to alienate ; and if, by reason of the failure of the husband to concur in the act, or to give his consent to it in writing, the transfer by Mrs. Mallon to Foreman was void, it inevitably follows that the agreement between Mrs. Mallon and Mrs. Pecot was void for the same reason.

In reality, no title to the property in question ever vested in Mrs. Mallon. The agreement required her to dismiss certain suits, and to abandon certain claims, in consideration of which Mrs. Pecot promised to transfer the property to her. The performance of this agreement by Mrs. Mallon, if she had the capacity to make the agreement, and to ■comply with the terms, would not have vested the title in her: it would merely have authorized her to sue for specific performance by Mrs. Pecot, or for damages for non-performance. The recording of the decree .against Mrs. Mallon did not create a judicial mortgage on the property in question, because Mrs. Mallon did not own it; and if she had been authorized, or was legally competent to make the agreement with Mrs Pecot, the recording of the decree would have been no obstacle to the transfer by her to Foreman.

One of two consequences results : Either Mrs. Mallon acquired no right' under the agreement with Mrs. Pecot, because of her incapacity; or all the rights flowing to her from that agreement had passed to and vested in Foreman before the execution enjoined was issued. In either case Mrs. Mallon had no property or right under that agreement subject to seizure under that execution.

The title and ownership of the property were in Mrs. Peoot. She was satisfied to part with the one third for the benefits and advantages promised by Mrs. Mallon; and she was content, aEter having received that consideration, to make the conveyance to Foreman, the transferee of Mrs. Mallon, which she had promised to make to Mrs. Mallon. We know of no principle which would authorize any creditor of Mrs. Mallon to treat this conveyance as a nullity, or to subject the property, simply because of Mrs. Mallon’s want of capacity, since she was as competent to alienate as she was to acquire.

The judge of the district court erred in reserving the right of appellant to proceed against this property by the hypothecary action. He never had that right, because the agreement between Mrs. Mallon and Mrs. Pecot did not create any such right in Mrs. Mallon as could be affected by judicial mortgage.

The judgment appealed from in so far as it reserves to appellant the right to proceed against the property in question by the hypothecary action is annulled, avoided, and reversed; and, in all other respects, it is affirmed with costs.


author: Manning, C. J.

text:
    No. 996.
    Elisée Thibodeaux vs. Adolphe Comeau and Wife.
    A defendant who excepts to the capacity of the plaintiff to stand in judgment does not waive the benefit of the exception by failing to require the court to rule on it before passing to the merits.
    ■The dative testamentary executor alone can not maintain an action to revoke a donation inter vivos made by the deceased, on the ground that the donees have not fulfilled the conditions of the donation. The heirs of the deceased are necessary parties to such an action.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Fontelieu, J.

      C. H. Mouton for plaintiff and appellant.

      E. E. Mouton, Felix Voorhies, and J. E. Mouton for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

On. the 5th. of June 1869 Elisée Thibodeaux donated to Adolphe Comeau and wife, by notarial act, two small tracts of land, And the improvements upon them, appraised in the Act at twenty-three hundred and twenty dollars, and an inconsiderable quantity of movables, valued at two hundred and sixty-five dollars. He had no other property.

At the conclusion of the Act, the “ donees bind, and obligate themselves to keep in their own house, respect and treat the donor during his lifetime, with the affection and care' clue a father by good children.”

The donor was aged and without wife or legitimate children. Some of his brothers and sisters, and the descendants of other deceased brothers and sisters, were then, and are now living.

In October 1871 he brought this suit to annul and revoke this donation, alleging that Comeau “had been guilty towards him of cruel treatment, and grievous injuries of every description,” and that both donees had “ the ill-disguised intention to retain the property donated to them, and to disregard the principal condition of the donation, inasmuch as they have acted, and continue to act towards him in such a way as to render their living together insupportable.”

Pending this action, Thibodeaux died, leaving a will which'is not in the record, and we can not therefore know whether the testator disposed, or pretended to dispose, of the real estate previously donated, nor whether he gave to his executor seizin of his property. That executor did not qualify, and upon the appointment of a dative executor, this suit was revived in his name.

Thereupon the defendants excepted, that this action could not be prosecuted by an executor — that the action is personal to the donor, or to his heirs, who alone can stand in judgment therein after his death.

The defendants did not require a decision upon their exception, but proceeded to trial on the merits. The case went off however on the exception, which was finally sustained by the court. The plaintiff, executor, now insists that the exception must be considered as waived by the defendants’ failure to require the court to rule upon it before passing, to the merits. The authorities cited do not sustain that position, nor do we think reason justifies it. The exception is not to the capacity of the executor — not that he is not executor — but that, being executor, he has not authority to prosecute this suit. It would certainly have been more regular, and would have saved time which was uselessly wasted in a trial upon the merits, had the court have rendered on the threshold of the trial the judgment which finally became the subject of this appeal. But the defendants are nevertheless entitled to the benefit of the exception.

In Hart v. Boni, 6 La. 98, the question was, whether the executors of a will can maintain an action to annul a donation inter vivos, made by the testator, and the court say, where seizin is given to the executors by the will, they are authorized to bring an action to recover the possession of any property which may have belonged to the testator at his death. If the claim set up be one, which involves the rights of the heirs or legatees, they should, if present, be made parties to the suit, and if absent, their representatives should be brought in. It is also there said, that in countries having laws similar to ours, it has been held, that although executors can not alone maintain an action in relation to the rights of heirs, they may do so in conjunction with those who are interested in that capacity.

In a later case, Brittain v. Richardson, 3 Rob. 78, it was said, when donations mortis causa or inter vivos are clothed with all the forms required by law to give them validity, none but forced heirs can sue for their reduction, if they exceed the disposable portion ; but it is otherwise, when they are null for want of such formalities, the legitimate heirs of the deceased, or other representatives of the estate having, as well as the forced heirs, an action to have them annulled.

In the present case there is no question of the nullity of the donation for want of any formality, nor of any excess in the donation of the disposable portion, since there are no forced heirs. Neither is the executor’s right to maintain this action fortified by his seizin of the property, since in the present instance the executor is not testamentary, but dative.

Marcada, treating specially of the action of revocation for cause of ingratitude, says, the second' paragraph of art. 957 of the Napoleon Code declares expressly, que la revocation ne peut étre demandóe ni contre les héritiers du donataire, ni par les héritiers du donateurs ; l’action est toute personelle, activement et passivement, et doit étre intentée par le donateur lui-méme contre la personne méme du donataire. Mais la loi apporte une exception a ce principe quant aux héritiers du donateur; elle leur permet de continuer Taction quand elle a été intentée par leur auteur. Exp. du Code Nap. vol. 3, p. 581.

There is no intimation that the action can be maintained by any one but the heir. It is true the cause of revocation in this ease is not ingratitude, but the alleged non-fulfillment of the sole condition upon which the donation was made — the condition being, that the donees should keep the donor in their own house, and treat him through life with the affection of children, and the alleged violation being, that their conduct towards him rendered living with them insupportable.

The present action in revocation is assimilated to that for the enforcement of the resolutory condition in a sale. The property donated is almost exclusively real estate, or that kind of property in which the heir is peculiarly interested, and of which he is the inheritor. No creditor is interested. There are none. Non constat but the heirs of an irascible old man would recognize in the kindly attentions of the donees, of which the record bears witness, the evidence of a desire to fulfill the condition, imposed upon or assumed by them, and their determination to do it as far as the impetuosity of his blind anger will permit them.

We think the heirs are necessary parties to an action of revocation of a donation of this kind, and for the causes set up here.

The judge of.the first instance so held, but he went further, and gave an absolute judgment, quieting the defendants forever in their possession and title. This is error. The exception was properly sustained, but the defendants are not entitled to a final judgment, nor should the suit be dismissed, but the parties should be remitted .to the condition they were in when the donor died. The suit should stand as it then was on the docket, until the heirs become parties either alone, or with the executor. Therefore

It is ordered, and decreed that the judgment of the lower court, in so far as it sustains the exception of want of proper parties, is affirmed, and as to tho other part thereof is reserved, and the caséis remanded for farther procee lings, the appellees to pay the costs of appeal.

Mr. Justice DeBlano recuses himself in this cause, having been of counsel.


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    No. 1021.
    State ex rel. W. F. Schwing, District Attorney pro tem., vs. Theodore Fontelieu et al.
    In a rule taken on a judge to show cause wliy ho should not be recused in a certain suit, personal citation of the defendant, even -when served on him in a parish other than the parish of his domicile, is sufficient.
    Parties may be sued before whatever tribunal the legislature shall designate.
    Tho act 129 of the Legislature of 1877, touching the recusation of judges, is notin conflict with the constitution of the State.
    To a rule taken under act 129 of 1877 on the district judge, and the parish judge of the parish in which a certain suit has been brought, to show cause why both of them should not be recused in the suit, tho parish judge is a necessary party to the rule, and the trial of the rule should lie continued until he has been cited.
    APPEAL from the Sixteenth Judicial District Court, parish of Lafayette. Mouton, J.

      W. F. Schwivg, District Attorney pro tem., B. S. Perry, J. A. Breaux, and ZX Caffery for plaintiffs and appellees.

      F. Simon for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

This suit is brought before the Sixteenth District Court for the parish of Lafayette. Relators allege that they have brought suit in the Third Judicial District Court for the parish of Iberia, against Theodore Fontelieu, of said parish, to test his eligibility to the office of judge of said district, held by him. That the said Fontelieu, being defendant in said cause, and personally interested therein, is recused, and that T. J. Allison, the parish judge of said parish, is related to said Fontelieu within the fourth degree, and is incompetent to try, and by law recused in said cause. They, therefore, bring this proceeding before the nearest district judge, and pray for a rule on said Fontelieu and Allison to show cause why they should not be recused and said suit transferred to and tried in the district court in and for Lafayette parish, •agreeably to the provisions of act number 129 of 1877. The rule was granted by the judge of Sixteenth District, and the defendants ordered to show cause as prayed for, within three days from service thereof. •Judge Eontelieu being at the time in the parish of St. Mary, the rule was served on him personally by the sheriff of that parish.

On the appointed day the defendant, Eontelieu, appeared and filed exceptions as follows:

1. To the mode and place of service of the rule.

2. To the jurisdiction of the district court of Lafayette, on the •ground that he was a citizen of Iberia.

3. That act number 129, under which relators proceed, is in conflict with acts 90 and 111 of the Constitution.

The case was twice continued for want of service on Allison. On the seventh May the relators, alleging that Allison was a necessary party and had not yet been served, asked a further postponement to cite him. This was refused and the case taken up, and evidence pro and con introduced: The judge, thereupon, held that Allison was a necessary party, that the case could not be tried without him, that relators had shown no diligence in causing him to be served, and dismissed the rule as in case of nonsuit, Belators have appealed.

We shall consider’ seriatim, the various points raised, especially those relating to the constitutionality of act 129, since if that act is unconstitutional the proceeding must be dismissed for that if for no other reason.

1. We do not think that the service of a rule to show cause in a summary proceeding like this must necessarily be made in the parish of the defendant’s domicile, except when personal service can not be had. It is sufficient in this class of cases that the service be made in person on the defendant. It would be very inconvenient to hold that rules to show cause must be served in the parish of the domicile, for that would interfere too much with the progress of these summary proceedings. Thus a litigant in the courts of St. Landry, residing in 'Orleans, though personally present in St. Landry pending the progress of his suit, could not be served personally with any of the many rules that are granted daily in the courts. According to respondent’s views, a rule to show cause why testimony should not be read, would, in the case supposed, have to be sent and served at the domicile in New Orleans, if the party had no attorney present, although the party himself were present in the courthouse at Opelousas. We think the service in person on the defendant in St. Mary sufficient. He is deprived of no conceivable right by it, and can not be prejudiced by it.

2. The second objection is without force if the act 129 is the law,, since the will of the Legislature is unrestricted in determining where-parties may be sued.

3. Is act 129 in contravention of articles 90 and 114 of the Constitution? Article 90 is as follows: “In any case when the judge may be recused, and when he is not personally interested in the matters in contest, he shall select a lawyer * * * to try such case. And when the judge is personally interested in the suit, he shall call upon the parish or district judge, as the case may be, to try the case.”

The argument is that the case before us is provided for by this-article, and that, therefore, the act 129, providing a different mode of trial, is unconstitutional. It is contended that the district judge in this-case being personally interested, must call upon the parish judge, who,, thereupon, becomes district judge, pro hac vice, and who, not being personally interested, but only recusable on other grounds, has the power of selecting a lawyer to try the case. We can not accept this view. It is the judge before whose court the case is brought that has this power of selection. The article does not give the substituted judge ad hoc any such power. When the parish judge is substituted, there is no more-reason to say he has this power of selection, if recused, than for saying that the lawyer has, where he is substituted. Neither of them is the-judge of that court. They are both mere judges ad hoc.

Nor do we think the act is void under article 114, which provides-that “every law shall express its object or objects in its title.” The-purpose of this act is well known. It was to protect the Legislature by making the title of the act declarative of the general purposes of the-act, so that on hearing the title read (which is the usual mode of reading acts in legislative assemblies) the members would know the subject-matter in a general way, of the bill. The provisions of the act must be germain to the matter specified in the title. We think such is the case with act 129. We, therefore, conclude that said act is constitutional.

We have seen that under said act the parish judge was and is a necessary party to this proceeding. Until he was before the court the-case could not be tried. We know no rule of law that justified the district judge in dismissing the suit because he had not been cite'd. Of necessity the case should have been continued. So far as relates to the-convenience of the party who had been cited, the judge should have ordered notice to be given him after service had been effected on the other party of any future fixing of the case. We are not prepared under the facts disclosed in this record to condemn the relators for laches. They did their duty in ordering the process to issue. There is evidence in this record of undue and partisan interest exhibited by some of the parochial officers of Iberia which deserves censure. The judge-'before whom this case is pending is by virtue thereof seized of jurisdiction, quoad this case, over the officers of Iberia, and it is his duty to force them to do their duty, and in default to punish for the contempt, •and even by suspension. District Attorney vs. Richmond, 29 An.

It is therefore ordered and decreed that the judgment appealed •from be annulled and set aside, and that this case be remanded to be ¡proceeded with according to law and the views herein expressed..


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    No. 1000.
    Uranie Bérard vs. Vincent Boagni.
    .A depositary may show by parol evidence that the money deposited with him, and for wkieh he had given kis written receipt, was composed of certain bank bills.
    ■A depositary is not liable for any depreciation in the value of bank bills deposited with him, unless it appears that the depreciation has proceeded from his fault, or has occurred after he was in default to restore the deposit.
    Before a party can be held in damages for failing to do what he has contracted to do, ho must be put in default by a written demand, or a verbal demand in the presence of two witnesses.
    "The obligations of a depositary are prescribed in ten years from the time he is in default for not restoring the deposit.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J.

      Kenneth Baillio for plaintiff and appellant.

      Garland & Dupré for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff sues to recover of defendant $800 and interest from .April 1, 1861, being the amount contributed by certain persons for her benefit and received by defendant “ on deposit and in trust for her.” In ■ the receipt executed by defendant on 1st March, 1861, he acknowledges to have received the amount “ for Madame Uranie Bórard.” It is also ■stated therein that the sum is contributed for the purpose of aiding to build or to buy for her a home, or to rent one for her. It is further recited that her receipt shall suffice for the discharge of Boagni, and ■that his responsibility for the fund shall not extend beyond that of Bel-Jocq, Noblom & Co., of New Orleans, or qther house with whom he does business, upon his depositing the same with said house.

The evidence shows, and it is not denied, that the defendant received this $800 in eight $100 bills of the Bank of Louisiana; that he sent these bills to and deposited them with a member of the firm of Bellocq, Nob-Tom & Co., of New Orleans ; that at the close of the war these identical 'bank bills (of which the letter and numbers were, preserved by defend¡•■ant) were returned to him by said firm, and that just prior to the institution of this suit the plaintiff made a written tender of them to the-plaintiff, who refused to receive them.

The discussion in this case has taken a wide range, and it has been-argued with zeal and ability on both sides ; but under the views we have taken it will not be necessary to enter upon so wide a field. The only ■questions material for us to consider are :

First — Whether the defendant could show by parol that the deposit with him was not money, but bank-bills.

Second — If so, is he, as depositary, liable for their depreciation in-value while in his possession.

First — On the first question, we think that it was competent for him to show the fact that the eight hundred dollars were represented by bank-bills. It has been long established that receipts for money are-open to explanation by parol, and that the rules relative to the admissibility of parol to vary or contradict written contracts do not apply. Besides, it is hardly a contradiction to show that the thing received was- ‘ eight hundred dollars ” in bank-notes. See 5 A. 235 ; lb. 408; 14 A. 274 ; 7 N. S. 534 ; 8 R. 246.

Second — The doctrine is that the depositary is liable for deterioration, and therefore for depreciation, only when it has proceeded from his-fault, or has occurred after he was in default'to restore the deposit.

There is no pretense that the depreciation of the notes of the Bank of Louisiana proceeded from or is attributable to any fault of defendant. It only remains to inquire, therefore, whether this depreciation took place after defendant was in default to restore the deposit. If he was in default, he is responsible for such loss as resulted thereafter. The plaintiff contends that he was put in default by the terms of his reeeiptr that the fact that he did not build or buy or rent her a home was a default ; that his neglect to restore the fund to her to be used for the purposes intended constitutes default on his part. We can not concur in these views for two reasons :

First — We do not see that the defendant assumed or undertook to build, buy, or rent the house. He simply received and agreed to hold the funds on deposit, contributed for that purpose.

Second — But even had he assumed such obligation, it would have ■ been an obligation to do, and in order to make him liable in damages a formal putting in default, by demand in writing, or in presence of two ■ witnesses, was necessary. O. C. 1911 and 1933. It is not pretended that such demand was ever made. Besides, the present suit is not one in damages for not doing the things for which the contributions were made,., but is brought to recover the fund deposited. The things deposited were bank-notes. His obligation as depositary was to keep them, and' restore or disburse them when called upon. It can not be asserted that he failed to do these things. He certainly kept them, the identical bills, as he promised, and there is no proof that any demand was ever formally made for their delivery. In fact, we think no demand, formal or informal, was ever made for these bills.

But, if plaintiff’s views be correct, that defendant was in default from April 1, 1861, when it is contended he failed and neglected to-do the things with which it is alleged he was charged, then the plea of ten years prescription would apply, for it is manifest that prescription will run in favor of a depositary from the time he is in default to deliver the deposit; so that the plaintiff is placed in this dilemma, that if defendant was in default, as alleged, then prescription has run in his favor. If he was not in default, then he is only bound to restore the-deposit, such as it is. This the defendant formally offered to do, before-this suit was brought. This tender on his part should relieve him from costs.

The judge a quo gave plaintiff judgment for the eight bank-notes-deposited, and condemned defendant to pay the costs. We think this judgment correct, except in so far as it condemns defendant for costs.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended so as to condemn plaintiff to pay the costs,, and that as thus amended, and in other respects, the said judgment is affirmed.


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    No. 1032.
    Widow Briant vs. Désirée Hébert et al.
    When the signatures of the two sureties of an appeal bond appear at the bottom oí the bond, and the name of one of them appears in the body of the bond, the-bond is good and sufficient.
    When the sheriff makes a return of a writ of ft. fa., under which he has seized certain property after the return day of the writ, and retains a copy of the writ, written by himself, it is not necessary that he should append to the copy his certificate of its correctness, in order to enable him to make a valid sale of the seized property. Under such circumstances, the return of the writ after its return day, will not affect the validity of the sale.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Fontelieu, J.

      E. Simon & L. J. Ganj for plaintiff and appellant.

      Mouton & De Baillou for defendant and appellee.
   On Motion to Dismiss.

The opinion, of the court was delivered by

Manning, C. J.

The motion to dismiss is based on the ground that the names of the sureties to the appeal are not inserted in the body of the bond. This ground would be good, if the fact were as stated. There are two sureties, whose signatures are at the bottom of the bond, which is for one hundred dollars, and the name of one of them is inserted in the body of the bond, and that makes it good. The motion is denied.

On the Merits.

The defendant had issued execution on a judgment obtained by him against the plaintiff, and she has injoined the sale under it. The sole ground of injunction is, that the writ of fieri facias had expired, and had been returned by the sheriff to the clerk’s office, and was there filed subsequent to the expiration of the writ, which fact, the plaintiff alleges, divests the sheriff of all rights of possession of the property, and of all authority in the premises.

The writ issued May 29,1877. The seizure was made, and notice was served in July, and the property was then advertised for sale — the sale to take place on first Saturday in September. The seventy days which the writ had to run expired on August 8th. On the 11th. of that month the original writ was filed in the clerk’s office, with this return written upon it“ Received the within writ on the 29th. day of May 1877, arid duly proceeded to execute the same by levying upon the property of defendant, and the time specified by law for the return of the writ having expired, it is hereby returned unsatisfied after having kept a correct copy of the same.”

The position assumed by the plaintiff is, that since the original writ was returned after the expiration of the seventy days, the sheriff was totally divested of authority to proceed further. The fact that the officer had retained a copy does not appear to have been thought material by the plaintiff when she applied for an injunction. Her petition does not allege any informality or vice in the return as ground for the writ. The fact that the sheriff had not returned the writ on or before the expiration of seventy days, it was supposed, invalidated all his subsequent proceedings. The fact that a copy had been retained was known. It was stated by the sheriff on the original, but it was not considered of any consequence, inasmuch as the return was made after the seventy days had expired.

Afterwards, and on the trial, another ground of invalidity was set up in argument, as it is here, viz that the copy of the writ, retained 'by the sheriff, was not certified by himself.

¥e do not think either ground tenable. Formerly the sheriff could proceed with the original writ, and was not bound to return it unless required by the plaintiff. Rowley v. Kemp, 2 Annual, 360. Now, when a seizure has been made under a writ of fieri facias, and the property •can not be sold before the return day, the officer must nevertheless return the writ, but at the time of making the return, he must make and retain a copy of it, duly certified by himself, and proceed to the sale under the certified copy. Code of Practice, art. 642.

The sheriff in making the return in this case kept a correct copy of "the writ, made by himself. The fact that he did not append to this copy his own certificate of its correctness does not invalidate it. The essential matter is that he shall make a correct copy, and retain it, and pro-need under it. When the copy is made by himself, his own certificate does not assure its correctness more than the fact that he made it. It is not pretended that his copy was incorrect, and the provision that he shall certify to its correctness is not sacramental, when he makes it himself. The provision is merely directory, and he substantially complies with it when he makes it with his own hand.

Nor is it essential that his return shall be made before, or at the •expiration of the time limited for the writ to run. He had done under the original all that was to be done except making the public cry of the property, and the adjudication: If before tnis exposure for sale, and adjudication, the return is made, and a correct copy is retained, he has in his hands the authority to act, and his sale is legal.

The object of compelling the sheriff to make return of the writ of fieri facias within a specified time, was to prevent the future recurrence of a grave abuse of which the sheriffs had sometimes been guilty, and to put it in the power of the plaintiff in execution to control his •official conduct thereon. A sheriff might, and sometimes did, fail to proceed under the writ, and as he had it in his own custody, a plaintiff would be ignorant of what his action had been. The statute therefore provided that he should return the writ within a given time, by which means the party interested in its enforcement learned what offi-cial action had been taken under it, and if he did not return it, he became liable to the party entitled to the benefit of it for the full amount specified therein. Bev. Stats, sec. 34P8.

The purpose of the requirement was then to enable the plaintiff to exercise the surer and speedier control over his process. The defendant was not inj ured more by having his property sold under a copy than under an original, and the material matter for officer and parties is that the copy shall be correct, so that the particular property seized or directed to be sold shall be the same as that mentioned in the writ, if any special property shall be thus mentioned, and the sum to be realized by the sale shall be neither greater nor less than that specified in the original.

The single ground upon which the injunction was sued out, and its want of force, shews that the process was invoked for delay. The defendant prays for twenty per centum damages, and ton per centum additional, and one hundred and fifty dollars as attorney’s fee. We are-not disposed to inflict the heavy damages prayed. The fee of the attorneys is estimated by a witness at one hundred dollars. The judge below dissolved the injunction with ten per centum damages. That is enough.

Judgment affirmed.

Mr. Justice DeBlanc is recused in this case.


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    No. 1027.
    Duncan Greig, Tutor, vs. H. Eastin, Sheriff, et al.
    Minors under the tutorship oí their father do not come within the terms o£ the homestead act.
    Property held in indivisión can not be the object oí a homestead right.
    Minors will be held in damages only ior the actual expenses of a defendant in injunction, caused by a wrongful injunction sued out by their tutor.
    A PPEAL from the Sixteenth Judicial District Court, parish of La-JA fayette. Mouton, J.

      E. E. Mouton for plaintiff and appellant.

      M. E. Girard for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff, as tutor of his four minor children, enjoins a-writ for the seizure and sale of their plantation issued to pay a mortgage debt held by G. A. Breaux. The grounds of injunction are, first, that part of the property seized is' exempt from sale under the homestead act; second, that the sheriff is proceeding to sell said lands without subdivision into lots of ten to fifty acres.

First — The property seized belongs exclusively to four minor children of Greig, and they hold it in indivisión.

They are under the tutorship of their father, and do not come within the terms of the homestead act as persons having others dependent •upon them. Property held in indivisión can not be the object of a homestead right. See 23 A. 153; 23 A. 733, 832; and Cole vs. LaChambre, not yet reported.

Second — By act 32 of regular session of 1877, approved March 8tb, the law (sec. 3451 of Revised Statutes) providing the mode of dividing land into lots was repealed. This act repeals the special laws referred to in art. 654 C. P. We have held that “art. 132 of the,constitution is of that class of provisions which remain necessarily inoperative until the mode of giving them effect is provided by statute.” Bohn vs. Bossier, 29 A. 146; 24 A. 214. The sale in this case was advertised to take place on Saturday, 5th May, 1877, nearly two months after the repeal of the law providing the manner of division under art. 132 of the constitution.

There are other satisfactory reasons urged why the plaintiffs are not entitled to the homestead, or to the division into lots, but it is unnecessary to state them.

The judge a quo dissolved the injunction but refused to give damages. The defendant and appellee has filed an answer to plaintiffs’ appeal praying for damages. The plaintiffs in this cause are minors. Their tutor has abused the equitable writ of injunction ; but we are not disposed to visit his sins upon them, beyond what will be a most moderate allowance to the defendant for his expenses and costs. We will allow damages to the amount of five per cent on the amount of principal and interest of the debt enjoined.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, and that the defendant, G. A. Breaux, do-have and recover of the plaintiffs and surety on the injunction bond in solido, as damages, five per cent on the amount of judgment enjoined, and as thus amended said judgment is affirmed ; appellant to pay costs of both courts.