text:
    Rachal et al. v. Rachal et al.
    The fact tliafc a witness is a son-in-law of the party by whom he was offered, is an objection to his credibility, but not to his admissibility.
    Simulation in written acts; when alleged by third persons or forced heirs, may be proved by parol.
    A copy of a writing, not authenticated by the proper officer, is inadmissible, not being the best evidence in the poiyer of the party offering it.
    Where the witnesses to an act of partition sous seing privé, containing donations to the children of'the party by whom it was made, are dead, and their signatures are proved, no objection can be made to tba admissibility of the act in evidence, on the ground that it was not authentic.
    A mother, co-defondant with her son, may he interrogated on facts and articles ; hut her answers are not evidence against the son. They can only affect the parly by whom they were made.
    The action of forced heirs, in which the sale from a parent to his children is attached as containing a disguised donation, is not derived from the ancestor, but from the law. So far as their ligitime is concerned they are not heirs, hut creditors.
    from the district court of Natchitoches, Taylor, J.

      Campbell, for
    the plaintiffs.

      M. C. Dunn, for the defendants.
   The of the court was pronounced by

Rost, J.

This suit is instituted under article 2419 of the Code, which, authorizes forced heirs to attack the sales of parents to children as containing disguised donations. There was judgment in favor of the plaintiffs, and the defendant, Prudent Rachal, appealed.

On the trial of the cause the plaintiffs offered H. F. Tiviehel as a witness. The defendants objected to his testimony, on the ground that he is the son-in-law of one of the plaintiffs, and took a bill of exceptions to the opinion of the court overruling the objection. The district judge did not err. The objection made went to the credibility of the witness, not to his admissibility. Bernard v. Vignaud, 10 M. R. 485.

The defendants also objected to the testimony of this and other witnesses, on the ground that the questions asked went to explain or to contradict written acts; but the evidence was received, the court considering it the best mode by which the simulation could be proven, and bills of exception were taken. This evidence was properly admitted. Simulation, when alleged by third persons or forced heirs, may be proved by parol. 1 La. 239. 6 M. 525.

The defendants offered in evidence a schedule of an auction sale of the effects of Prudent Rachal, on proving by a witness that the auctioneer named therein had acted on the occasion as auctioneer, and had signed the original of which a copy was offered in evidence. The court, on the objection of the plaintiffs, refused to admit this evidence, on the ground that it was a copy, and that the original should be produced or accounted for. The defendants excepted. The court did not err. The paper offered was not the best evidence in the power of the party offering it, not being authenticated by the proper officer.

The plaintiff offered in evidence an act of partition containing donations to his children, to take effect after his death, and anterior in date to the sale to Prudent Rachal. The defendants objected to its introduction, on the ground that it was not authentic; but the court overruled the exception, and they took a bill of exceptions. The witnesses to the act were all dead, and their signatures were proven. The date of the act was certain, at least, up to the death of the witness who died first, and there could be no reason not to receive it as evidence,

The plaintiffs had filed interrogatories to Marie Rosalie Rachal, the widow of Dominique Rachal, and one of the defendants in the suit.

P. Rachal objected to these interrogatories being answered, on the ground that the parly interrogated was his mother and could not testify against him. The judge properly overruled the objection ; but the answers to these interrogatories are not evidence against Prudent Rachal; they can only affect the party who made them.

On the merits, the plaintiffs have shown satisfactorily that the sale to Prudent Rachal was a disguised donation, and that no consideration passed. They have also established the value of the property transferred to be $15,000, and that the sale included all the properly of their ancestor, except a few moveables valued in the inventory at $61 50. They have therefore made out the case alleged in their petition, .and are entitled to recover, unless the peremptory exception, filed by the defendant during the trial, can be sustained. It is as follows : The defendant, Prudent Radial, files a peremptory exception to the plaintiffs’ petition, inasmuch as they charge that the contract of their ancestor, Dominique Radial, was illegal, immoral, and contrary to public policy, and that they can no more recover under such a contact than he could if still alive.

The petition contains no allegation that the sale was made for a fraudulent purpose; but some of the plaintiffs’ witnesses have stated in their evidence their belief that, the object of the sale was, at the beginning, to place the property conveyed out of the reach of a suit then pending, and in which D. Radial was cited as warrantor. The alleged object of Dominique Radial in making this sale cannot affect the lights of his forced heirs. The action by which they seek to enforce those rights is not derived from him, but from the law. So far as their legitime is concerned, they are not heirs ; they are creditors. The exception is not tenable. Judgment affirmed.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Edelin v. Richardson.
    A judgment will not be reversed on the ground of its not allowing interest, where the amount of interest was but small, and the omission was not made a special ground for a new trial.
    from the District Court of Rapides, Cushman, J.

      Elgee and Hyams, for the appellant.

      Ryan, for the defendant.
   The of the court was pronounced by

Eustis, C. J.

The plaintiff, who is an attorney and counsellor at law, brought his action against the defendant to recover the sum of $1000, with interest from judicial demand, for professional services rendered the defendant in a controversy arising undei' the last will of his deceased wife, and in relation to the community of acquets and gains which had existed between the defendant and his said wife, which services the plaintiff alleges to have been well worth the said sum of $1000. The case was submitted to a jury, who found a verdict for the plaintiff for the sum of three hundred dollar’s. Judgment being rendered for that amount, the plaintiff has appealed.

It appears that the plaintiff was employed by the defendant as assistant counsel, and that the ground of controversy in which his interests were involved was the effect of the birth of a child subsequent to the date of the will, upon its validity. The principal counsel was examined as a witness before the jury, and the main services rendered by the plaintiff were in consultation with the witness on the question of law above stated. Another gentleman of the bar was also employed by the defendant, to aid in the affairs of the defendant’s wife’s succession. The business was terminated shortly after by a compromise.

Three gentlemen of the bar-, examined as witnesses by the plaintiff, estimate the services of the plaintiff at a larger sum than that allowed by the verdict It is obvious that, the testimony of the principal counsel, who could alone be acquainted with the character of the services rendered in counsel by the plaintiff, and who had the means of forming a correct estimate of their value, is entitled to great weight in forming a conclusion on that subject. If the jury took this testimony for their guide, they certainly were at liberty so to do in the exercise of their deliberate judgments. The witness considered the' plaintiff’s services as worth more than two hundred and fifty dollars, and that if the defendant had paid the plaintiff five hundred dollars he would have done himself no injustice; and very properly adds that he finds it difficult to estimate the value of the plaintiff’s professional services, from the want of any positive criterion in such a case as this. We understand the witness as affirming only that, the value of the services exceeded $250. The estimate of the three gentlemen, as to a higher rate than that given by the verdict, we do not imderstand to be concurred in by two other gentlemen of the profession, who were examined on the part of the defence.

The object of the appeal is not to obtain a new trial, but a judgment for five hundred dollars—the amount at which the plaintiff’s services are estimated by his witnesses. As we have had occasion to observe, in a late case of this kind, the responsibility of determining the amount of fees due for professional services is a matter of great delicacy; and, under the rules under which our predecessors have acted, the court must be guided by a conscientious estimate of their value. Succession of Macarty, 3 An. Rep. 621. Counsel fees are, in point of fact, from their very nature, honorary, and are not susceptible of an accurate appreciation in money. The jury having passed upon the whole evidence, which is not concurrent, we do not feel ourselves at liberty to give the plaintiff a larger sum than that awarded to him by the verdict.

It is objected that the judgment allows no interest; but we think this ought to have been made specially one of the grounds for a new trial. Grailhe v. Hown, 1 Annual, 140. Judgment affirmed.


author: Kino, J.

text:
    Gamard v. Hart et al.
    Where the judgment enjoined bears interest at ten per cent a yeaiy the court/ on dissolving the injunction/ cannot increase the interest. Whatever else it may be proper to allow, 1 must be in the form of damages.
    from the District Court of Rapides, Cushman, J.

      Ryan, for the' appellant.

      Elgee and Hyams, for the defendants.
   The of court was

Kino, J.

B. B. Hart and Labadie and Jaquelin obtained judgments against Gamard, and caused writs of fieri facias to issue, under which the sheriff seized a slave. The plaintiff, representing his minor child, George Alfred, instituted this action to enjoin the execution of the writs, alleging that the slave seized be-longed to his minor son, in virtue of a donation from one Valletli, duly accepted.The defendants, in their answer, aver that the pretended act of donation is simu-lated and fraudulent, and was made for the purpose of placing the slave beyond them pursuit. They pray for a dissolution of the injunction, with damages-. ■The cause was submitted to a jury, who returned the following verdict: “We, the jury, find for the defendant.” A judgment was thereupon rendered dissolving the injunction, and condemning the plaintiff, and his- surety on tha bond, in solido, to pay ten per cent per annum interest on the amount of the judgment enjoined, fr-om the date of the injunction, witii fifty dollars damages as counsel fees, and the costs of suit, from which the plaintiff has appealed.

The evidence, in our opinion, fully establishes the act of donation from Valletti to George Alfred Gamard to have been a simulation, and supports the verdict of the jury.

The facts, as they appear from the evidence, are briefly these: Alphonse Gamard, the father, originally purchased the slave in controversy, in 1840. In 1843, but a few weeks previous to making a cession of his property, by a private act, admitted to record after the filing of his surrender, he sold the slave to Valletti, for $400, acknowledging to have received the price in cash. In September, 1845, Valletti made the alleged donation to the minor George Alfred. Gamard was a country merchant, doing a very limited business. He was insolvent, by his own admissions in his proceedings on his surrender, at the date of his sale, and continued to be much embarrassed in his affairs at the date of the donation. Valletti was his clerk, not possessed of the means necessary to make the purchase, and receiving, according to the testimony, a salary not exceeding twenty five dollars per month. The donation was made about the time that Valletti was leaving the country. No change of possession is shown to have followed any of the acts, Gamard appearing to have always remained in possession from the date of his purchase in 1840. This testimony, we think, authorized the conclusion of the jury that, the sale from Gamard, and the donation from Valletti, were simulations.

But it is contended that, the district judge erred in allowing interest, and counsel fees, which were not authorized by the verdict.

It is not important to enquire whether the judge possessed the power, under the act of 1831, to award interest and damages on the dissolution of the injunction, notwithstanding the silence of the verdict on these points; as the whole case is before us upon the evidence, it becomes our duty to render such a decree as, in our opinion, should have been rendered in the court below, and to allow such damages as the defendants may be entitled to.

We think that the judge erred in awarding ten per cent interest on the amount of the judgments enjoined, as both of the judgments previously bore interest at that rate. 19 La. 303. 3 Rob. 123. The judge must have considered the defendants entitled to damages, which were allowed as interest; and, in concurring with him in that opinion, we will give the defendants ten per cent as general damages; also fifty dollars, special damages, for counsel fees, which the evidence shows to be reasonable.

It is, therefore, ordered that, so much of the judgment appealed from as condemns the plaintifT, and his surety, John Kirley, to pay interest at ten per cent per annum on $1581, from the 6th day of March, 1847, until paid, with $50 damages, for counsel fees, be reversed. It is further ordered that, the defendants Bernard B. Hart, and Lahadie and Jaquelin, recover of George A. Gamard, represented by Alphonse Gamard, and his surety, John Kirley, in solido. one hundred and fifty eight dollars, being ten per cent as general damages on the amount of the judgments enjoined, and the further sum of fifty dollars as special damages for counsel fees, and the costs of the low'er court. In other respects, the judgment appealed from is affirmed; the appellees paying the costs of this appeal.


author: King, J. Eustis, C. J.

text:
    State v. Brown.
    Decision in State v. George, 8 Hob. 535, as to wl>en the formation of an opinion as to the guilt of a prisoner will disqualify a juror, affirmed.
    It being material, in the interest of justice, that the motives and prejudices, as well as the means of knowledge, of a witness, should be laid before a jury,-great latitude is allowed in his cross-examination. But this latitude is necessarily, to a certain extent, confided to the discretion of the judge of the first instance.
    To enable an appellate court to determine whether a decision, of the judge of the first instance be within the legal discretion vested in him, all the facts material to the decision musi appear fi'om the bill of exceptions.
    A jury will not be authorised to infer the existence of any bias or prejudice on the part of a witness against a prisoner, from the fact that the witness, though not an officer of the peace, and without any warrant, and not summoned by any officer to aid in arresting the' prisoner, had taken great pains to do so.
    from the District Court of Cushman, J.

      Isaacks, district attorney, for the State.

      Ryan, A. N. Ogden and Hyams, for the appellant,
    cited Lithgów v. Commonwealth, 2 Va. Cases, 297, quoted in 2 U. S. Dig. verbo Juror, no. 114. Bacon’s Abridg. verbo Juries, 258. 1 Burr’s Trial, 371 to 420. People v. Mather, 4 Wend. 245. Ex parte Vermilyea, 6 Cowen, 555.- People v.Jeioel, 3 Wend, 314. United States v. Wilcox, 1 Bald. 78. Queensbury v.State, 1 Stew, and P. 308. Commonwealth v. Knap, 9 Pick. 496. Boardman v. Wood, 3 Vermont, 570. Laverty v. Gray, 3 Mart.-620.
   The judgment of the court, on the first bill of exceptions, was pronounced by

King, J.

The defendant was convicted of manslaughter, and, after sentence, appealed. The questions which arise are presented in two bills of exception taken to opinions of the judge on the trial. The first is to the refusal of the' judge to permit the prisioner to challenge four jurors for cause. The statements of the jurors on their voir dire examinations were reduced to writing, and have been appended to the bill of exceptions. Their statements are as follows :

James R. Andrews sworn : On being asked if he had formed and expressed an opinion in relation to the guilt or innocence of the accused, says that, he has from what he has heard. On being interrogated by the court, he says that his opinion is not such as to bias his mind, should the evidence which may be adduced on the trial be different from what he has heard in relation to the matter. He never heard the witnesses speak on the subject.

M. Layssard sworn : On being asked by the counsel for the accused, if he had formed and expressed an opinion in relation to the guilt or innocence of the accused, says that, from report he believes he has. On being questioned by the court, he states that the opinion he has formed is not so fixed that it could not be changed by the evidence which may be adduced on the trial, should it be different from what he has heard; thinks he could do justice between the State and the accused; his opinion is not so deliberately formed as to resist impressions which may be made by the evidence.

11 John B. Calland sworn : On being asked by the counsel for the prisoner, if he had formed mid expressed an opinion in relation to the guilt or innocence of the accused, says that he has, from rumor. On being questioned by the court, he states that his opinion is not .so deliberately formed as to resist impressions which may be made by the evidence; should endeavor to do justice between the State and the accused, if sworn upon the case ; that his mind is open to receive any impressions which the evidence, should it be different from what he has heard in the matter, may disclose.

R. Winfield sworn : On being asked if he had formed and expressed an opinion in relation to the guilt or innocence- of the accused, says that he has from what he first heard of the case. On being interrogated by the court he says that, he has heard several speak of the matter; does not know if they are witnesses or not; his opinion is not so fixed' but that it might be changed from the evidence. Thinks that, if sworn upon the case, he could do justice between the State and the accused. Has no prejudice upon his mind.”

The judge held these jurors to be competent. The two first were challenged peremptorily by the prisoner, and the two last were sworn as jurors, and sat on the trial. The counsel for the accused contend that, the jurors were not such as the law deems impartial, and rely mainly on the cases of The People v. Mather, 4 Wend. 245. Ex parte Vermilyea, 6 Cowen, 555. The same case, 7 Cowen, 108. Laverty v. Gray, 3 An. 620.

The point is one which has been so frequently raised and decided, that it must in a great measure depend upon the authority of adjudicated cases. In England, the objections now urged to the jurors would not have been sustained. Hawkins, b. 2, chap. 42, sec, 28, says that: “ It hath been adjudged a good cause of challenge on the part of the prisoner, that the juror hath declared his opinion before hand that, the party is guilty, or will be hanged, or the like; yet it hath been adjudged that, if it shall appear that the juror made such declaration from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge.” This was recognized to be law in the case of The King v. Edwards, 4 Barn. & Ald. 470, and is laid down as a primary rule by Chitty in his work on criminal law, 1 vol. 542. In the elaborate opinion pronounced in the case of The People v. Vermilyea, 7 Cowen, 121, the correctness of the rule as1 stated in those- authorities, was questioned.

It is not to be denied that, upon this, as upon almost every other point of criminal jurisprudence; there have been conflicting decisions in the different States of this Union. But, as far as we have been able to extend our inquiries with the limited means at our command, the great preponderance of authority is in favor of the rule that, when the opinion of the juror, in favor of or against the prisoner, lias been formed on- mere rumors or reports, such an opinion does not disqualify liim, if his mind has’been kept free from bias or prejudice, or has received only such impressions as may be removed by evidence. But, where- a deliberate opinion has been formed, the-jurors have, in most cases, been excluded. This fs substantially the rule laid down hy Chief Justice Marshall in Burr’s Trial, vol. I, 416, and adopted' by the late Court of Errors and Appeals in the’ case of the State v. George, 8 Rob. 537. The courts of several, of the States have gone much further.

The-american decisions upon this' point have been collected in Wharton’s American. Criminal Law, 605, et seq. We have been unable to refer to the adjudicated cases from which the author has extracted the principles laid down in his work; but his general accuracy authorizes us to rely on their correctness.

In Virginia, where the strictness of the common law is said to be most rigidly enforced in crimiminal proceedings, a juror who, on his voir dire, said that, “ lie had expressed an opinion on the circumstances as he had heard them narrated in the country, but he had not heard, any ofrfhe evidence given on the examination of the prisoner; nor conversed with any of the witnesses or parties, and he did not think the opinion so formed would have any influence on his mind in trying the case,” was held to be an indifferent juror. In another case, the juror “had heard reports concerning the case in the country, and a statement of the circumstances from one of the witnesses, and had formed a hypothetical opinion, but he believed it would not influence his mind as a juror; he believed the account he had heard of the case at the time he heard it, (and he did not now express any doubt of its truth); if the evidence on the trial should correspond with the account he had heard, his former opinion would remain; but if it should be different, he felt satisfied he should be able to decide the cause without being influenced by what he had before heard, and without prejudice.” He was held to be an impartial juror. Other cases are cited, but these are sufficient to illustrate the rule as it prevails in that State.

In the States of North Carolina, Mississippi, Tennessee, Indiana, and Illinois, substantially the same rule obtains. See Wharton’s Am. C. Law, 605 et seq., and the authorities there referred to.

In Massachusetts the law appears .to have been otherwise settled; and it is contended that, in New York, the rule is, that the juror will be excluded if he has formed an opinion upon mere rumor. The decisions of that State to which we have been referred, are conflicting. In the case of Von Alstyne, as we find it stated in Ex Parte Vermilyea, 6 Cowen, 565, Chief Justice Spencer said : “If a person had formed or expressed an opinion for or against the prisoner on a knowledge of any of the facts attending the murder, or from information of those acquainted with the facts, he considered it a good cause of challenge; but if the opinions of the jurors were formed on mere rumors and reports, he decided that such opinions did not disqualify the jurors.” See also the case of Durell v. Masher, 8 Johns, 445.

The case Ex Parte Vermilyea, 6 Cowen, 555, and same case, 7 Cowen, 121, does not, in our opinion, sustain the position assumed by the defence. The juror there declared that he heard all the evidence given on the former trial, having been present at it; that he had made up his opinion perfectly, on the evidence, that the defendants were all guilty, and had frequently expressed his opinion to that effect. That, if the testimony given on this trial should appear as it did on the former, he should certainly find the defendants all guilty.” This juror was held to be incompetent, and, we think, correctly.

The case of The People v. Mather, 4 Wend. 245, is the only one from that State, to which we have been referred, which supports the ground assumed by the prisoner’s counsel.

In this conflict of authority we adhere to the rule adopted in the case of The State v. George, 8 Rob. 537, which, in our opinion, denies to the prisoner no right accorded to him by law.

The judgment of the court on the second bill of exceptions was pronounced by

Eustis, C. J.

Another bill of exceptions was taken by the counsel for the prisoner on the trial of the cause. It is to this effect: Be it remembered that, on the trial of the cause, when one of the witnesses od the part of the State was under cross-examination, the defendant’s counsel proposed to show by the same witness, that he had taken great pains to arrest the said defendant, and had gone into the country in pursuit of him, he having no warrant or authority to arrest him, and not being a peace officer, and not having been called upon by any such officer to aid in arresting the prisoner. The object and purpose of which evidence was, to show a bias and prejudice on the part of the witness against the accused; and so announced by counsel. But the court refused to permit the questions to be asked the witness, to which refusal the counsel for the defendant excepted, &c.

It being material, in the interest of justice, that the motives and prejudices, as well as the means of knowledge, of a witness, should be laid before the jury, great latitude of interrogation is allowed in the cross-examination. But this latitude is necessarily, to a certain extent, confided to the discretion of the judge who sits at the trial. The protection of the witness, and the discipline of the court, necessarily vest this power in the judge under whose supervision the proceedings are conducted.

It is well settled in courts of common law, that error will not lie upon what is matter of discretion in a court; and it follows that, in order to enable a court of appeal to determine whether a decision of a judge of the first instance is, or not, within the legal discretion vested in him, all the facts which are material to the decision must be presented, in order to enable the appellate court to determine on the legality of the decision on which its judgment is sought.

In this respect the bill of exceptions under consideration is totally defective. It does not state what' the witness had testified to, and gives no account of his principal examination, nor of tjie cross-examination, nor at what stage of the latter, nor what had already been proved at the time when the questions stated in the bill of exceptions were submitted.

Nor are we prepared to say that, had the witness answered them affirmatively, the jury would have been justified in inferring from the acts a bias and pre-, judice, on the part of the witness against the prisoner. By .the common law, jorivate persons are enjoined to arrest an oifepder when present at the time a felony is committed, and when not present they may arrest a person on reasonable and probable grounds of suspicion, The witness may have been present when the homicide, charged in the indictment as murder, was committed; and his taking great pains in the discharge of his duty as a citizen ought to subject him in law to no charge of bias or prejudice against the prisoner. A jury would not be authorized in inferring the existence of either under such circumstances. Had the witness answered the questions in the negative, the prisoner .could not have contradicted him by other evidence, for the facts which the questions sought to bring out were collateral and irrelevant to the issue. 1 Green-leaf on Evidence, 449.

We think, therefore, that this bill of exceptions presents no error of law, uppn which the judgment of the District Court can be reversed.

Judgment affirmed*


author: Slidell, J.

text:
    Jacobs v. Calderwood.
    The delegation by which a debtor gives to his creditor another debtor, who obliges himself towards such creditor, does not operate a novation, unjess the creditor has expressly'declared his intention to discharge the debtor by whom the delegation was made. The acceptance by the creditor of such a stipulation pour autrui will not authorize the inference that he intended to discharge the original debtor. O. 0. 2188.
    Where the notes secured by a mortgage have all matured before the sale under an order of seizure and sale, and are of like nature and dignity, they must be paid proportionally out of the fund.
    Prescription as to the original debtor is not interrupted by an hypothecary proceeding against the mortgaged property in the hands of a third person; nor will it be interrupted by a partial payment made through the judicial sale produced by such hypothecary proceedings.
    A debtor who makes a payment is considered'as interrupting the prescription running in his favor, because there is an implied acknowledgement of the creditor’s right. But 220 such acknowledgment'can be inferred from a payment made, not by the debtor, but without his knowledge or participation, and through a judicial proceeding to which he was not a party.
    from the District Court of Ouachita, Barry, J.

      Purvis and Copley, for the appellant.

      McGuire and Pay, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The defendant executed two notes in favor of Jacobs, each fra1 $750. The first fell due in March, 1842, and the second in March, 1843. They were given for the price of a house and lot, sold by the plaintiff to the defendant. In 1841, the defendant sold the property to Hanna, who assumed, as the consideration of the sale, to pay the notes, agreeing to put himself in the place, stead, and responsibility of Calderwood to Jacobs.

In April, 1842, Jacobs instituted ah hypothecary action against Hanna, and obtained a decree of seizure and sale. The proceeds of sale were insufficient to pay the mortgage debts. Jacobs afterwards brought a personal action against Hanna upon his assumption, and before the trial of the present suit obtained judgment against him personally, for the residue. The object of the present suit is to recover from Calderwood, the unpaid balance of the notes.

It is certain that Calderwood was once the debtor of the polaintifF; and he must have continued to be' so unless the plaintiff has consented to his discharge. It is not pretended that an express consent has been given; but the defendant argues that his release results, by legal implication, from the facts already stated. In this view we do not concur.

The original debt was not novated. Novation is a contract consisting of two stipulations: one to extinquish an existing obligation, the other to substitute a new one in its place. Code 2181. The preexistent obligation must be extinguished; otherwise there is no novation. Ib. 2183. Novation is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt. Ib. 2186. The delegation by which a debtor gives to the creditor another debtor, who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation. Ib. 2188.

Applying these principles to the case before us, it is impossible to deduce the discharge of Calderwood from the acceptance by the plaintiff of the stipulation pour autrui, made in the contract of sale between Calderwood and Hanna. Hanna's liability was superinduced upon that of Calderwood, which still subsisted, and which the creditor did not intend to relinqrush.

Pothier, in commenting upon the rule that, a novation is not to be presumed, unless the intention of the creditor to affect it clearly appeal’s, puts the following case: “C’est pourquoi si, dans la méme espéce, ayant fait une saisie et arrét sur Jacques, pour le fait de Pierre mon débiteur, Jacques s’est obligé envers moi purement et simplement, par un acte, á me payer la somme de mille livres qui m’est due par Pierre, et pour laquelle j’ai fait arrét, sans qu’il ait été ajouté, comme dans l’espéce ci-dessus, que j’ai bien voulu, pour faire plaisir á Pierre, me contenter de 1’obligation de Jacques, ou quelque autre chose semblable, qui fera connaitre évidemment que j’ai voulu déchai’ger Pierre, je ne serai point censé avoir fait de novation, et Jacques sera censé avoir accedé á l’obligation de Pierre, qui demeure toujours mon obligé. The case of Walton v. Beauregard, 1 Rob. 301, is clearly distinguishable from the present. There the creditor, without the consent of the original debtor, made stipulations for delay, and entered into arrangements with him which were considered by the court as making the contract more onerous.

The gross proceeds of the judicial sale of the mortgaged property effected in the hypothecary action brought by Jacobs against Caderwood, were $666 66. The question is presented, whether that money is to be imputed to the first note, or proportionally to both.

The decree' of seizure and sale directed that the property should be sold for so much cash as would pay the first note, and the residue of the price on a credit so as to meet the falling due of the second note. As Jacobs was the holder of both notes, if the property had been sold before the maturity of the second note, the law, as against Calderwood, who was not a party to the suit, would perhaps have imputed the proceeds of the sheriff’s sale to the first note exclusively. C. C. 2162. But when the sale was made and the money received, both notes had matured, and, being of like nature and dignity, were to be paid proportionally out of the fund. The sheriff’s return credits the amount upon the execution, which followed the terms of the decree. Whether this be construed, or not, as an implied imputation of the proceeds to the first note, is immaterial. Calderwood did not assent to, and was not bound by, any other than the legal imputation.

A portion of the first note having been thus paid, the question remains, whether the residue is barred by prescription. The note fell due in March, 1842. The present suit was brought in January, 1848. In the intermediate period, no proceedings whatever were had against Calderwood, nor is there any evidence of any acknowledgement by him.

We consider it clear that, the hypothecary proceeding against the mortgaged property in the hands of Hanna, did not interrupt idle prescription as to the personal liability of Calderwood. See Troplong, Presc’n. §658, 659, and note. It is equally clear- that, the partial payment, made through the judicial sale already mentioned, was not an interruption as to Calderwood. A debtor who makes a payment is considered as interrupting the prescription which is running in his favor, because it is an implied acknowledgment of the creditor’s right. But such an acknowledgment cannot be predicated in case of a payment made, not by the debtor, but Without his knowledge or participation, and through a judicial proceeding to which he was not a party.

The plaintiff is entitled to recover the unpaid balance of the second note.

It is, therefore, decreed that, the judgment of the court below, so far as concerns the note sued ttpon, due 1-4 March, 1843, be reversed; and it is further decreed that, the plaintiff, Samuel Jacobs, for the use of George W. Copley, recover of the defendant, John Calderwood, the sum of $562 73, with interest thereon at the rate of ten per cent per annum from the 6th day of January, 1844, until paid, and costs in both courts.


text:
    Canal and Banking Company v. Grayson et al.
    Defendants who had, with others, signed a letter addressed to a judge of probates, stating that those who signed the letter would become the sureties of a third person, in ease he should be appointed administrator of a particular succession, cannot be held liable as sureties, though such third person was appointed administrator, where a bond was taken for the discharge of his duties, signed by other persons, and not by the defendants.
    from the District Court of Catahoula, Barry, J.

      M’Guire and Ray, for the plaintiffs.

      Purvis, Phelps, and R. W. Richardson, for appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a judgment rendered against Grayson Sf Lovelace, who are the appellants, at the suit of certain creditors of Thomas Bryan, deceased, on the ground that the appellants were sureties of P. Austin, who was the administrator of the succession. They were not parties to the bond given by the administrator, but have been held liable by virtue of a letter addressed and delivered to the late judge of the parish of Catahoula, by whom the administrator was appointed, the purport of the letter being that, if Austin should be appointed administrator of the succession of Bryan, the appellants, and seven other subscribers to the letter, would be his sureties. Four of the subscribers, with two other persons, became the sureties of the administrator.

It is not easy to discover a single legal principle on which the appellants can be, in any sense, held to be the sureties of the administrator. The proposition to the judge, before his judgment was rendered appointing the administrator, can not be heard in a court of justice without a violation of rules which are elementary. See the decision of this court in the case of Taylor v. Jones, 3 An. 621.

The judgment of the District Court is therefore reversed, and judgment rendered for the defendants, with costs in both courts.

      The letter containing the proposition to the judge is not marked as having been filed among the records; but it was found among the papers of the succession. The signers proposed to become the sureties of Austin, in case he got “the appointment of administrator of Thos. Bryan, deceased.” Austin was appointed “administrator of the succession of Thomas Bryan and Melinda Bryan, deceased,” and the bond actually signed was for his faithful performance of all his duties “ as administrator of the succession of Thomas Bryan and Melinda Bryan." R.


author: Rost, J.

text:
    Copley v. Richardson.
    Where there has been a settlement of partnership affairs to a certain date, and one partner executes his note in favor of the other for an amount due to the latter, he Cannot require a final settlement of the partnership before paying the note thus given.
    Where a party binds himself to the holder of a note to pay the amount in case he cannot get it out of the maker, the return of the sheriff on a fi.fa. against the maker, “that having made diligent search and enquiry, and no property being found in this parish, it is returned nulla bona," will not suffice to authorize a judgment against the surety. Per Cur : The law malees it the duty of the sheriff to call upon the defendant to point out property, and, in ease he is unsuccessful, to call upon the plaintiff to do the same thing. Here no such request was made from either, and, non constat., that the judgment would not have been paid if a demand had been made of the defendant.
    from the District Court of Ouachita, Barry, J.

      Copley, appellant, se.

      Richardson, defendant, pro se.

   The of the court was pronounced by

Rost, J.

The plaintiff sued the defendant on a due bill for $205 87, bearing interest at the rate of ten per cent per annum, from 23 of September, 1842. The defendant set up in reconvention the following 'claims: 1. A claim of $117 40, under a written obligation of the plaintiff, bearing date 20 of February 1844. 2. A claim for $200, with interest at the rate of ten per cent per annum, from the 1 of March, 1841, till paid, alleged to be the amount of Thomas L. Norris’ note in favor of the plaintiff, dated the 1st of June 1840, due on the 1st of March, 1841, with interest as stated, Which note the plaintiff bound himself to Iiewry C. McEnery, the holder of it, to pay, in case the amount thereof could not be1 made out of Morris, of which obligation the ^defendant avers he is the owner by regular transfer and assignment. The District Court allowed the claims of both parties, and gave judgment in favor of the defendant in reconvention, for the balance in his favor. The plaintiff has appealed.

The plaintiff opposes the allowance of the first claim in compensation, on the ground that it originated in, and is connected with the partnership affairs of Copley 8f Richardson, of which there has been no final settlement. There have been several partial settlements of the affairs of this partnership : one on the 20 February, 1844, the date of the plaintiff’s obligation in favor of the defendant.

When there is a settlement of partnership affairs to a certain date, and one partner executes his note in favor of the other, for an amount due him, he cannot require a final settlement of all the affairs' of the partnership before paying the note thus given. 11 La. 293. The plaintiff expressly bound himself to give credit for the amount of the note he gave, on such notes as he held of the defenddant’s, which the said defendant might acknowledge as correct. We are satisfied that this credit was properly allowed.

The appellant opposes the second claim, on the ground that the defendant has failed to show due diligence on the part of McEnery, in attempting to collect the amouut of it from Norris. The agreement of Copley was to pay the amount, provided McEnery could not get payment out of the maker, Norris, it being well understood that he was only to be responsible in the event of the insolvency of Norris, and after McEnery should have taken all steps to collect the money of him by suit and execution. McEnery obtained against Norris a judgment, upon which execution issued, and the return of the sheriff on that execution is as follows: “Ree’d 2nd February, 1842, and having made diligent search and inquiry, and no property being found in this parish whereon to levy this writ, it is returned nulla bona.”

The law makes it the duty of the sheriff to call upon the defendant to point out property, and, in case he is unsuccesful, to call upon the plaintiff to do the same. Here no such request was made by the sheriff from either, and, non constat, that the judgment would not have been paid if a demand had been made from the defendant. The return of the sheriff is not a compliance with the condition on which Copley bound himself, and this portion of the reconventional demand of the defendant must be dismissed.

It is, therefore, ordered that the judgment in this case be reversed, and that the plaintiff recover from the defendant, the sum of one hundred and seventeen dollars and fifty four cents, with interest at the rate of ten per cent per annum from the 20th February 1844, till paid. It is further ordered that there be judgmentas of nonsuit against the defendant upon his claim against the plaintiff on the Norris debt, and that he pay the costs in both courts.


text:
    Longino v. Blackstone.
    Proof that a judgment of separation of property had been obtained by a married woman against her husband, will not authorize a judgment against her personally for a debt contracted by her since the judgment of separation. Per Cicr:' A separation of property, though decreed, if not executed by payment of the rights and claims of the wife as far as the estate of the husband can pay them, made to appear by an authentic act, or by abona fide uninterrupted suit to obtain payment, is null. C. C. 2402.
    from the District Court of Franklin, Barry, J.

      Purvis, for the plaintiff.

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

Rost, J.

The plaintiff sues on two promissory notes, which he alleges were Made hy Susannah Blackstone and others, in solido, for an improvement upon public land; and further avers that the said Susannah was at the time separated in property from her husband, and authorized to bind herself as a feme sole. Judgment was rendered in his favor against her, and she appealed.

Besides other grounds of defence, which it is not necessary to notice, the defendant alleges that her husband, P. M. Blackstone, signed her name to the notes, without her approbation; that, so far as she acted in the 'transaction, she was the passive instrument- of her husband’s will; that all she did was done under marrital authority, and created no personal obligation on her part. Her answer also contains a general denial.

To prove the separation of property, the plaintiff propounded to her the following interrogatory:

Did you bring a suit for separation of property between you and your husband, P. M. Blackstone, when you lived in the parish of Catahoula, and did the district court decree a separation, and do you hold the negroes and other property which you have now, as your own separate property 1

The defendant failed to answer this interrogatory; and it was ordered by the court to be taken for confessed.

The evidence thus obtained is not sufficient to authorize a judgment against the defendant personally. A separation of property, although decreed by a court of justice, is null, if it has not been executed by the payment of the rights and claims’of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide non-interrupted suit to obtain payment. C, C. 2402. Nothing of this kind is shown to have been done; nor does it appear that the defendant ever had any' property entitling her to a judgment of separation.

It is, therefore, ordered that the judgment in this case Be reversed1, and that there be judgment in favor of the defendant,-with costs in both courts-.


text:
    Mitchell v. Lay.
    Where, in an action to enjoin a fi.fa., an appeal is granted to the defendant, Oh motion and in general terms, it must be considered as embracing not only the plaintiff but also the' sureties in.the injunction bond,-who, by a fiction of law (Stat of 25 March,-1831 s. 3,) are' considered as plaintiffs in the injunction.-
    Where an appeal is granted on motion in open court,-no citation is necessary.
    A motion to dismiss an appeal,-taken by the defendant'from a judgment rendered in an action-enjoining an execution, on the ground that the principal in the injunction bond Was the' only obligee in the appeal bond, must be made within three days after the record is filed.
    EEHEARING as-to the sureties on the injunction bond. See first part of. this case, 3 An. 593.

      Garrett, for the plaintiff.

      McGuire and Ray, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

The order of appeal was granted upon motion, and in general terms. It must be considered as embracing not only the plaintiff in the cause, but also the sureties in the injunction bond, who, by a fiction of law (Statute of 1831,) are parties plaintiffs in the injunction. The appeal being ordered upon motion, the sureties are to be considered as having been cited as appellees. Act of 1843, p. 40. Isabella v. Picot, 2 An. 390. If the appeal bond was informal in naming their principal only as obligee, upon which point we express no opinion, it was an informality which should have been suggested at an earlier day, and cannot now be noticed, See O'Reilly v. McLeod, 2 An. 138.

It is, therefore, ordered that, the decree against the sureties, Ryan and Newhurger, remain undisturbed.


author: Etjstis, C. J.

text:
    The State v. Wooten.
    Where a' bond entered into by a prisoner and his sureties, under the stat. of 11 March, 1837, s. 1, lor the appearance of the principal at a term of court, does not describe the offence committed, nor that for which the party is hound to answer, the condition being merely for his appearance at a term of court and remaining there until discharged, no judgment can be rendered against the parties to the bond.
    from the District Court of Morehouse, Copley, J.

      Sharp, district for the State.

      Dubose, for the appellant.
   The of the court was pronounced by

Etjstis, C. J.

This is an appeal taken by the defendant from a judgment of the Twelfth District Court, sitting in the parish of Morehouse, rendered on motion, under the act of 1837, on a bond entered into by the defendant and his sureties, for the appearance of the former at a term of said court next ensuing after the execution of the bond.

The act under which these proceedings have been conducted, places bonds and recognizances upon the same footing; and this court has moreithan once held that, there are certain forms to be observed in both which are .essential to recovery on them under the law,

The bond is without any endorsement of filing in court, or return from the magistrate or officer, or any note or word of the manner in which it is taken. It is executed in favor of the Governor of the State and his successors in office. It does not describe the offence committed, nor that for which the party is bound to answer, the condition being merely for his appearance at the next-term of the court, and remaining there until discharged.

In the case of the Commonwealth v. Daggett, 11 Mass. 447, it was held essential to a recognizance for the appearance of a party to answer a criminal charge, that the recognizance contain the cause of taking it; and, in the case of the State v. Jones, 3 An. 9, it was held that, no judgment could be rendered under this act on a bond, in which the .charge recited did not constitute an offence against the laws. See also the State v. Cooper, 3 An. 225.

The motion to dismiss this appeal we do not think tenable.

It is, therefore, decreed that, the judgment appealed from be reversed, and that the State take nothing by its motion.


text:
    Dawson v. Headen.
    A plaintiff in a possessory action, who floes not claim either as owner, or with the consent of the owner, must show that he was in actual possession of the land claimed when the eviction complained of occurred.

      from the District Court of Morehouse, Copely, J.

      Dubose, for the plaintiff.

      Robertson and Boatner, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This is a possessory action, in which the plaintiff alleges that he has been evicted by force. He applied for, and obtained, an order of the district coui’t enjoining the defendant not to proceed any farther upon his property, by working or making any improvements thereon, till the further order of the court.

The answer of the defendant is a general denial, and an allegation that he has ¡never done any work, nor improved upon any land, except that of which he is the lawful possessor to the knowledge of the plaintiff. The case was tried before a jury, who returned a verdict in favor of the plaintiff; and the defendant has appealed from the judgment rendered thereon.

It is nof pretended that the plaintiff possesses under a title, either as owner, or with the consent of the owner; he must, therefore, show that, he was in aGtual possession pf the land he claims when the violence and eviction complained of are alleged to .have taken place.

The evidence shows that, in 1845, the plaintiff settled at the place where he nqw resides, built a cabin, apd enclosed a small held. This settlement was near a spring branch, on the other side of which the defendant then lived, and had also enclosed a few acres of land. The land in controversy is that through which the branch runs, and is situated between the two enclosures. It appears that, the defendant commenced making a fence, for the purpose of enclosing a portion Qf this land. The plaintiff having discovered this on a Sunday morning, took a portion of the rails off the fence around this lot, and laid the worm of a fence crossing the branch and passing over part of the land which the defendant intended fo occupy. On the same day, the defendant continued to lay down his fence, crossing the worm of the plaintiff at the gaps which had been left where it crossed the branch. On monday following, the sheriff served the process in tjiis spit. Tbs line of fence laid by the plaintiff had then large gaps, and went over logs and brush; and, in order to malte a fence, it would have been necessary to fake up the rails and Jay them down again. This line of fence, besides, stopped, and did not enclose any thing.

The plaiqtiff has totally failed to prove the fact of posseseion, and the disturbance of which he complains. Neither he, nor the defendant, had then acquired to the land ip controversy any right upon which the judgment of the court can be based.

If is, therefore, ordered that, the judgment in this case be reversed; it is further ordered that, the injunction sued out by the plaintiff be dissolved, and that the plaintiff's option be dismissed, with costs in both courts.


text:
    The State v. Morris.
    from the District Court of Catahoula, J.

      Sharp, district attorney, for the State.

      Phelps and Purvis, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a conviction of the appellant for manslaughter, The case has been argued on the motion taken by the counsel for the prisoner in arrest of judgment. The objections taken to the validity of the indictment do not appear to us to be supported by authority; on the contrary, the authorities refereed to in the brief of the district attorney fully sustain the decision of the District Court. The points on which it is made not being new, but familiar to the profession, it is not deemed necessary further to notice them.

Judgment affirmed.


author: Rost., J.

text:
    Pargoud v. Breard, Administratrix.
    Where, in an action for money against a succession, the testimoney of the witnesses is not reduced to writing and annexed to the reccord, and no list is made of such documents as were produced by the parties and not annexed to the record, the appellee may require the case to be remanded.
    The prosecution of a claim for money against a succession is exclusively a probate pro. ceeding. C. P. 924, §13.
    f.iom the District Court of Ouachita, Copley, J.

      Me Quire and Ray, for the plaintiff.

      Sharp and Baker, for the appellant.
   The judgment of the court was pronounced by

Rost., J.

This is a suit against the administratrix of the succession of Breard, upon an obligation subscribed by him to the plaintiff. William Maconchy, representing himself to be the agent of the administratrix, acknowledged service of the petition. He then failed to answer, and a judgment by default was taken against the succession, and, after the legal delay, made final for the balance claimed and interest. When the administratrix was apprized of this proceeding she took the present appeal.

The certificate of the clerk is not sufficient to enable us to examine the case on its merits; but the appellant contends that, she cannot be prejudiced by the this informality. Her counsel urges that this was a probate proceeding, in which, under article 1042 of the Code of Practice, it was necessary to take the testimony of the witnesses in writing, and to make and file in the record a list of all the documents produced by the parties ; and that this not having been done, she is entitled to have the case remanded, under the authority of Tompkins & Wife v. Benjamin, Tutor, 16 La. 197; Graham's Heirs v. Graham's Administrator, 16 La. 201; Desormes v. Desormes' Syndic, 17 La. 115; and the Succession of Reeves, 3 An. 554.

We are of opinion that this ground of defence must be sustained. The prosecution of a claim for money against a succession is exclusively a probate proceeding. C. P. 924, §13.

It is urged in behalf of the plaintiff that, this claim had been acknowledged by the administratrix; but this is denied, and the action of the plaintiff rests upon the presumption that it had not been acknowledged.

It is ordered that the judgment in this case be reversed, and the case remanded for further proceedings according to law, with directions to the District Judge to allow the defendant to plead to the merits. It is further ordered that, the costs of this appeal be paid by the plaintiff and appellee.


text:
    Tutorship of Betin et al.
    Decision in Pargotidv. Breard, supra, affirmed.

      from the District Court of Ouachita, Copley, J.

      Richardson, for
    the appellants.
    No counsel appeared on the other side.
   The judgment of the court was pronounced by

Rost, J.

This is a probate proceeding in which the testimony taken in the court below was not reduced to writing and annexed to the record, and in which, further, no list of the documents offerred in evidence was made out as required by art. 1042 of the Code of Practice. The appellants ask that the cause be remanded, and, under the view taken in the case of Pargoud v. Breard, just determined, their application must be granted.

The judgment is therefore reversed, and the case remanded for further proceedings according to law, with leave to the appellants to file oppositions to the account rendered by the defendant. It is further ordered that the costs of this appeal be paid by the defendant and appellee.


author: Siideul, J.

text:
    Sanders v. Huey.
    Tlie evidence of an attorney, in whose hands a note had been placed for collection, is admissible, for the purpose of preventing a double credit for the same payment, to prove that a credit endorsed on the note was written by himself, and that it was intended to be for the proceeds of certain property of the maker, which had been sold to make a payment on account, although the matter was not within his personal knowledge. Per Cur: The evidence does not contradict nor vary the written credit, but merely goes to show its origin and the motive of the party doing the act. The information of the attorney was secondary, and probably derived from his client; but to reject his statement on the ground of hearsay, would be a misapplication of the rule.
    from the District Court of Jackson, Copley, J.

      R. W. Richardson, for the plaintiff.

      McGuire and Ray, for the appellant.
   The judgment of the court was pronounced by

Siideul, J.

One of the defendant’s notes exhibits the following endorsement: '“This notéis entitled to a credit of one hundred and forty six dollars, this 20th August, 1848.” The credit was acknowledged in the plaintiff’s petition, but without stating its origin. At the trial of the cause testimony was adduced by the defendant to prove the delivery of certain cotton by the defendant to Colvin, the payee of the note, and the right of the defendant to be credited with its value. In order to prevent the allowance to the defendant of a double credit for the same item, the plaintiff offerred the testimony of his attorney to prove that the credit endorsed on the note was for the cotton delivered by the defendant; that he, the witness, had himself written the credit upon the note, believing it to be the just credit for the cotton, although the matter was not within his personal knowledge. We see no objection to the admissibility of the evidence. It did not contradict nor vary the written credit, but merely went to show its origin and the contemporaneous motive of the party doing the act. It is obvious that the information upon which the attorney acted was secondary. It was probably derived from his client. But to reject his statement on the ground of hearsay, would be a misapplication of the rule which excludes such evidence.

The evidence leaves no doubt upon our minds that the credit endorsed upon the note was for the cotton delivered to the former holder by the defendant, and he is entitled to but one credit for it. The only difficulty upon this branch of the case is, whether the defendant is entitled to a credit for the nett proceeds of the cotton as shipped and sold by Colvin for the. defendant’s account, or to a credit at a certain price, at which, as the defendant contends, Colvin agreed to take it. The evidence on this subject is conflicting, but preponderates in favor of the former hypothesis. ,

We deem it unnecessary to enlarge upon the facts of the case. After a full discussion by counsel, and a careful perusal of the evidence, we are of opinion that, the judgment of the court below has done justice between the parties.

Judgment affirmed.


text:
    Hollon v. Sapp.
    Improvements made upon the public lands of the United States, where the party making them is not in a situation to avail himself of the pre-emption laws,- cannot form- the object of a contract. The value of improvements so made cannot be recovered from a purchaser of the land from the United States; and, if possession of the land be retained from the latter by the person who made such improvements, damages will be allowed for the detention.
    Art. S00 of the Civil Code is not applicable to materials used, nor labor expended,- in making settlements on the national domain of the United States.
    from the District Court of Bossier, Olcott, J.

      McGuire and Ray, for the appellant.

      Lawson, for the defendant.
   The of the court was pronounced by

Rost, J.

The plaintiff purchased from the United States certain quarter sections of land upon which the defendant was then living, and- he has brought this action to recover the land so purchased. The defendant does not deny his-title, nor does he pretend to have been in a situation to avail-himself of the preemption laws of the United States; but he alleges that he improved the land in-good faith, and asks a judgment in reconvention for the value of his improvements. Tbe judgment was in favor of the plaintiff for thejand, and further decreed that he should pay the defendant three hundred dollars for the improvements, before tailing possession. From the latter part of the judgment the-plaintiff has appealed.

This case does not differ in principle from that of Jenkins v. Gibbon, 3 An. 204, in which we held that improvements made upon the public lands, where the party making them is not in a situation to avail himself- of the pre-emption' tion laws, cannot form the subject of a contract. The counsel for the defendant controverts the correctness of that decision, and contends that, under article 500' of the Civil Code,-the defendant is entitled to recover the value of the materials* employed by him, and the cost of the workmanship, even if he were a possessor in bad faith- We are of opinion that this article of the Code is not applicable to materials-used, and labor expended, in making settlements on the national domain.

When the State of Louisiana was admitted into the Union the people thereof forever disclaimed all right and title to the waste or unappropriated lands within its limits, and stipulated that the same should be, and remain as they were under the territorial government, at the sole and entire disposition of the United States, free from taxation by the State.

Under this treaty stipulation, the general government has continued to legislate for the preservation, settlement, and gradual alienation of those lands, as it did during the existence of the territory, and without opposition from the State. The legislation of Congress on this subject, so far as it is authorised by the treaty, is necessarby exclusive, and subject to no modification or control by local laws. No right can be acquired in relation to the public lands except under the authority of Congress.

The sale of the land in controversy to the plaintiff in this case, fixed the condition of the defendant as a trespasser, and left him without any claim which a court of justice can enforce.

We will allow the plaintiff fifty dollars damages, for the unjust detention of the land by the defendant.

It is therefore ordered that, the judgment in this case be reversed. It is further ordered that the plaintiff recover of the defendant, the south half of the south east quarter of section no. eight, in township no. eighteen, of range no. twelve; and the north east quarter of the north east quarter of section no. seventeen, in township no. eighteen, of range no. twelve. It is fnrther ordered that the plaintiff recover of defendant fifty dollars damages, with the costs in both cases.


author: Slidem, J.

text:
    Dick et al. v. Gilmer, Administrator, et al.
    Where another action is pending before the same tribunal, between the same parties, for the same object, and growing out of the same cause of action, the case must be dismissed, if the exception litis pendentis be pleaded. C. C. 335.
    from the District Court of Caddo, Olcott, J.
    Lawson, for the appellants.

      Todd, Gilbert, Crain, and Spofford, for the defendants.
   The judgment of the court was pronounced by

Slidem, J.

We are of opinion that the exception of litispendence was properly sustained. The former suit was between the same parties, for the same object, and growing out of the same cause of action. C. C. 335.

We are unable to perceive any force in the suggestion by counsel that, in the issues made in the former suit, the present plaintiffs occupied the position of intervenors. That position was voluntarily assumed by them ; Wolfe joined issue with them ; and a judgment in that suit would form res judicata upon the subjects presented now. There is a strong analogy between the pleas of res judicata and litispendence; and it is a fair test of the present .exception to enquire whether, if there were final judgment in the former suit, such judgment would support the plea of res judicata in this. Exceptioni rei judicat* affinis admodum est exceptio litis pendentis. Vbet, De Exceptionibus.

The exception of litispendence rests on a wise public policy. Were it not recognized by the law, the consequences, as is well remarked by. Merlin, would be not less absurd than dangerous. Suits might be indefinitely multiplied, and the citizen would be exposed to the expense and annoyance of several attacks, at the same time, for the same matter. The simplicity and uniformity which should reign in the administration of justice, might be superseded by the confusion and contradiction of different proceedings and judgments upon the same subject.

Judgment affirmed.

       A similar judgment, for the' same reasons, was rendered at the same term, in the ease of Beirne et al., against the same defendants. R.


text:
    Copley v. Snow.
    Where interrogatories propounded by a plaintiff to a garnishee do not disclose the amount of plaintiff’s judgment,- and it is not shown to have been otherwise notified to the garnishee, judgment cannot be rendered against him,- on his failure to answer, for the amount of plaintiff's judgment.
    Where a plaintiff, by whom interrogatories had been propounded to a garnishee, after a Written motion to have them taken for confessed, goes to trial upon the merits, without requiring the action of the court upon his motion, and permits the garnishee to offer his answers in evidence, without excepting to their being received, the answers must be con sidered as uncontradicted, and judgmeut may be rendered in accordance therewith.
    from the District Court of Caldwell, Barry, J.

      Purvis, for the appellant.

      McGuire and for the
   The of the court was pronounced by

Slidell, J.

The plaintiff, having obtained a judgment against Snoiu and issued execution, propounded interrogatories to Bres, as garnishee. After the lapse of the time designated in the citation, the plaintiff obtained an order that the interrogatories be taken as confessed, and judgment against the garnishee. Upon motion for a new trial, accompanied by answers to the' interrogaries, the judgment was set aside. The cause being afterwards heard upon the merits, there was judgment in favor of the garnishee, from which the plaintiff has appealed.

It is said that the court erred in setting aside the judgment against the garnishee, and in permitting him to file his answers to the interrogatories. Whether, under ordinary circumstances, the neglect of the garnishee would have been irremediable, it is unnecessary to decide. The judgment which condemns the garnishee was clearly erroneous; because the interrogatories did not disclose the amount of the plaintiff’s judgment against Snow, nor had it been otherwise notified to him.

After the answers were filed, the plaintiff filed a written application that the interrogatories might be taken as confessed, upon the ground that, the answers were not specific, but uncertain and insufficient. Subsequently the cause was continued from time to time, and was at length, as it would seem, tried upon the merits, the plaintiff offering in evidence portions of the proceedings in the cause, and the garnishee his answers to interrogatories, to the introduction of of which in evidence no exception was taken. These answers deny any indebtedness to Snow. The interrogatories were propounded- in general terms, and the answers were expressed in a similar manner.

We are not prepared to say that, the plaintiff was entitled to a more detailed account of the transactions' of Bres with- Snow in answer to the interrogatories as propounded. But if he were, he should, instead of going to trial upon the merits, have required the action of the court upon the motion already noticed, which does not appear to have been notified to the garnishee, nor passed upon . by the court; or he should have excepted to the introduction of the answers in evidence. Standing uncontradicted, they justify the judgment rendered in favor of the garnishee. *' Judgment affirmed.


text:
    Succession of Wells.
    Where a resident of another State, who dies here without having: acquired a domicil, leaves a testament executed in tlie State in which he resided, the effect of such testament upon slaves and moveables in his possession in this State at the time of bis death, must depend upon the jurisprudence of the State in which the testament was executed.
    from the District Court of Caddo, Olcott, J.

      J. W. Jones, for the absent heirs, appellants.

      Spofford, on the same side.

      Terrell, Iloclge, Gilbert and Landrum, for the curator.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from a decree of the District Court, sitting in the parish of Caddo, by which the will of the deceased, Bannister Wells, was admitted to probate, and ordered to be executed; and Mary Wells, the surviving wife of the deceased, was recognized as exclusive owner of the slaves and pei'sonal property of which the deceased died possessed, and which were in the hands of Joel U. Hardwick, who was the administrator of the succession. The decree further directed, that she be put in possession of said property, and that the administrator account to the said Mary Wells, within twenty days from the signing thereof. It would appear that those proceedings were conducted contradictorily with the administrator and the attorney appointed to represent the absent heirs; the latter has taken this appeal.

A bill of exceptions was taken by the appellant to the decision of the district judge in compelling the trial, and another as to the mode of conducting the argument; neither of which we deem it material to notice.

The will appears to have been executed in 1843, in the State of Mississippi; the deceased died in the parish of Caddo, in February, 1849, and, before leaving Mississippi, he made a division of property with his wife, who remained at home, reserving to himself nothing but the property which he took with him in his journey of migration, during which he died.

The deceased had not changed his original domicil in Mississippi, having acquired no other; and the effect of the will upon the property of which he died possessed, to wit, slaves and moveables, and also that of the entire change in his property, on his departure for another residence, upon the will previously anade, are matters which depend upon the jurisprudence of Mississippi.

Upon these questions, the evidence of counsel learned in the law ought to have been furnished. Without such assistance, we do not feel ourselves at liberty to decide them. The trial was had in the court below, without any sufficient preparation, and bears evident marks of precipitancy. The case involves questions of difficulty, at least, to us ; and we are not permitted to close it upon the showing which the surviving wife has made. The heirs of the husband do not appear to have been recognized—three only, his sisters, having presented themselves, and claimed their rights ; and it is not alleged that they are his sole heirs.

It is, therefore, decreed, that the judgment appealed from be annulled,-and the case remanded for further proceedings, according to law; the costs of this appeal to be borne by the appellee.

       In January, 18-19.


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    Bailey v. Morrison.
    Tlie natural tutrix of a minor child may emigrate to another State of the Union, and take her infant child with her.
    Although a natural tutrix who marries, without being authorized by the judge on the advice of a family meeting to retain the tutorship, will lose it, yet she may be subsequently appointed, as any other person, dative tutrix; and where the tutorship was forfeited by the marriage of the tutrix in another State, to which she had emigrated, she may be there appointed guardian of the minor, and will stand in the position of any other guardian of a minor appointed in the State to which she had removed; and under the stat. of 1 April, 1843. she may, on proof of her appointment, without qualifying as tutrix here under our laws, compel one who had been subsequently appointed tutor to the minor by a court of this State, to account; and, where it is shown that the debts of the succession through which the property descended to the minor have been paid, she may receive the funds in his hands, and take possession of the immovables.
    Ii ands of a minor, situated in this State, cannot be sold though at the instance of a foreign - tutor, without the advice of a family meeting. Such a tutor has full power to administer by an attorney in fact, the real property of his pupil situated in this State; but the rules regulating the alienation of the real property of minors are uniform, and independent of the tutor’s domicil.
    Sec. 2 of the stat. of 1 April, 1843, allowing any tutor or guardian, appointed in another State of the Union, to remove the property of his pupil from this State, applies to cases in which the estate of the minor has been converted into money; but does not authorize the sale of real property belonging to the minor situated here, without the advice of a family meeting.
    from the District Court of Ouachita, Copley, J.

      Sharp, for the plaintiff.

      Purvis, for the appellant.
   The judgment of the court was pro-

nounced by

Rost, J.

The plaintiff, Adeline Tufts, was married to Jno. Dowell, in the parish of Ouachita, in November, 1840. In 1843 Dowell died, leaving Henry Bibridge Dowell, his son, the only issue by his marriage with the plaintiff. A few days after his death, the plaintiff was confirmed as natural tutrix to the minor. She removed soon after to her mother’s residence in Massachusetts, and took her son with her. She resided there until the fall of 1847, when she intermarried with her present husband, Joseph Bailey, and removed with him to his residence in Connecticut, and is permanently settled there with the minor.

The plaintiff contracted this marriage without having been authorised by a family meeting to retain the tutorship; she was therefore, ipso facto, deprived of it; and the defendant, who is a relation of the minor, caused himself to be appointed by the judge on tire advice of a family meeting, and took possession of the minor’s estate.

On the 23 March, 1849, the plaintiff presented a petition to the Court of Probates for the district of Groton, in the State of Connecticut, where she resides, representing that her minor son had inherited an estate in Louisiana, which she desired to remove to Connecticut; she asked to be appointed guardian, and offered to give bond for the safe administration of that estate. She accordingly gave bond in the sum of $5,000, and was appointed. This proceeding was had under the authority of the case of Fisk v. Fisk, 2 An. 71.

The plaintiff represents that the defendant is in the possession of her son’s estate; she prays that she may be recognized as guardian; that the defendant may be ordered to render an account, and to pay over to her the funds in his hands. She finally asks for a decree of court to sell the land belonging to the minor, in order that she may remove the proceeds to Connecticut.

The defence is, that the plaintiff has been deprived of the tutorship, and could not be legally re-appointed;'that if she .could, she must give bond here as other tutors; that guardians appointed in the other States have no right to interfere with tutors appointed under the laws of this State; that much of the property of the minor is immovable, and cannot be taken care of by a guardian residing out of the State; that this land produces fruits, and the sale of it at this time would work an irreparable injury to the minor.

There was judgment in favor of the plaintiff, recognizing her as guardian, and ordering the defendant to account to her for the money in his hands. The court being further of opinion that, the other points raised by the pleadings could not be determined in the present action, reserved the rights of the parties }n relation thereto. The defendant has appealed; and the plaintiff asks that the judgment be amended in her favor, so as to authorise her to sell the land without the intervention of a family meeting, and to remove the proceeds to the State of Connecticut.

The plaintiff has, we think, made out a case of bond fide removal to another State; and there is no doubt that she had the right so to emigrate, and to take her infant child with her. Story’s Conflict of Laws, p. 505. 9 Mart. 543. 4 Mart. 715. 7 La. 543.

Although the plaintiff lost the tutorship by marrying without being authorized by the judge, on the advico of a family meeting, to retain it, she might subsequently have been appointed dative tutrix, as any other person. This constitutes no objection to her appointment in Connecticut. See Merlin’s Rep. verbo Tutele, §3, art. 3. 2 Duranton, no. 427. Robins v. Wells, 5 N. S. 382.

It may therefore be conceded that the plaintiff, under her appointment, stands in the same situation as the foreign 'guardian of a minor born in the State of Connecticut, and inheriting property in Louisiana.

The 1st section of the act of 1843, provides: “That hereafter, any person who has been, or shall be, appointed tutor or guardian of any minor residing out of the State of Louisiana, but within the United States, and who has qualified as such, in conformity with the laws of the State where said appointment is made, shall be entitled to sue for, and recover, any property, rights, or credits, belonging to said minor, within this .State, upon his producing satisfactory evidence of his appointment as aforesaid, without being under the necessity of qualifying as tutor of said minor, under the laws of Louisiana.”

Under this provision of law there can be no doubt of the right of the plaintiff to compel the defendant to account; and, as it is satisfactorily shown that the debts of the succession through which this property descended to the minor have all been paid, she is entitled, to receive the funds in the hands of the defendant, and to take possession of the immovable property. We are, therefore, of opinion that there is nothing in the judgment of which the defendant can complain.

We are further of opinion that the judge did not err, in refusing to order the sale of the lands of the minor without the advice of a family meeting. There is no law to authorize such a proceeding. A foreign tutor has full power to administer the real property of his ward, situated in this State, by an attorney in tact. Chiapella v. Couprey, 8 La. 88. If he neglects to do so, it is made the duty of the courts of this State to appoint a tutor ad Iona, for that purpose; but the rules regulating the alienation of the real property of minors are uniform, and independent of the tutor’s domicil.

The 2nd section of the act of 1843, allowing the tutor to remove the property of the minor from the State, applies to cases in which the estate of the minor has been converted into money, and does not authorize the sale of real estate in the manner prayed for. Judgment affirmed.


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    Sears, Administratrix, v. Willson et al.
    Where no petition and citation of appeal have been served on the appellee, it must appear from the record that the appeal was granted on motion in open court, or it must be dismissed.
    from the District Court of Morehouse, Copley, J.

      M‘Quire, Ray, Hunter, and Mathews, for the plaintiff.

      Baker, for the appellants.
   The

judgment of the court was pronounced by

Eustis, C. J.

The plaintiff, who is the appellee, has moved to dismiss the appeal on the ground that, it does not appear on the record that the appeal was granted on the motion of the appellant in open court, as required by the statute in cases where the appeal is not taken by petition and citation served on the appellee. We deem it indispensable to adhere to the requisitions of the act, which dispenses with the service of the petition and citation of appeal, by providing that parties are held to receive notice of an appeal, by motion being made in open court, where, by a fiction of law, they are supposed to be present during the term at which the judgment was rendered. St. Avid v. Pichot, 3 Annual, 9.

The entries on the minutes contain no motion for an appeal. They indicate great irregularity and looseness, and read- thus : “ Motion for new trial filed. Motion for new trial overruled. Appeal granted. Bond fixed for a suspensive appeal,” &e.

The motion to dismiss must prevail. Appeal dismissed.


text:
    Anderson v. Smith et al.
    A party who obtained possession of the land in controversy, not as owner, but with the consent and authorization of another, cannot maintain a possessory action against the latter.
    Parol evidence of third persons of a verbal contract to sell land, will not support an action for specific performance, nor for damages,
    from the District Court of Jackson, Copley, J.

      M‘Quire, and Ray, for the plaintiff.

      Stillman and Collinsworth, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff alleges that he is the owner of eight superficial acres of land, which the defendants illegally withhold from him. He asks to be put in possession of the land, and prays for damages.

One of the defendants has disclaimed all right to the land. The answer of ^ie °^el' is that, he is in possession, since 1845, with the knowledge and consent of the plaintiff; that the said plaintiff’ made a verbal contract with him, to convey to him sixty acres of land, including the eight acres in controversy, as soon as the mortgage then existing upon said, land was raised, and that he went into possession under that agreement; and that the plaintiff fraudulently refuses to execute said contract. The defendant prays that the plaintiff be adjudged to execute this contract, and to pay him damages. The case was tried before a jury, and judgment rendered on the verdict, in favor of the plaintiff, for the land, and $48 damages. The defendant appealed.

The ground on which the appellant mainly relies for the reversal of the judgment is that, this is a possessory action; and that, as he had been in actual possession more than one year when it was commenced, the judgment should have been in his favor.

Whether the action be petitory, or, as alleged, possessory, is immaterial, under the pleas set'up. The defendant has alleged in his answer, and has proved on the trial, that he went into possession of the land in controversy with the consent and authorization of the plaintiff, and holds under him. He did not, therefore, possess as owner, and could not have maintained a possessory action.

In the case of Marionneaux v. Edwards, 4 An. 103, we held that no action, either for a specific performance, or for damages, would lie on a verbal contract to sell land. This decision, with which we have no reason to be dissatisfied, is conclusive against the defendant, so far as his claims for the land and for damages are involved.

The plaintiff has claimed damages for the wrongful detention of his land by the defendant; the jury allowed $48 ; and, after perusing the evidence, we are unable to say that they erred. Judgment affirmed.