text:
    E. Collins v. J. Hallier, Administrator.
    The law does not prohibit an allowance of alimony, when a proper case is shown, to illegitimate colored children, out of the succession of their father.
    APPEAL from the District Court of St. Landry, Dupre, J.

      T. H. Lewis, Porter & Martel, and FLardy, for plaintiff.

      B. F. Linton, and F. Ff. Gullam, for defendant and appellant.
   Lea, J.

The defendant is appellant from a judgment against him in his capacity as administrator of the estate of Julien O. Genov, for alimony claimed on behalf of two illegitimate colored children of the deceased.

The appellees have not asked for any change of the judgment in their favor; they merely ask for an affirmance of the judgment granting the alimony. Our investigation is, therefore, limited to the sole inquiry, whether the evidence supports a judgment for alimony ?

It appears from the evidence received without objection, that the deceased died, leaving two illegitimate colored children, who are destitute of the means of support, unless the title to a lot of ground, with improvements, of which a donation was made to one of the children, be recognized as valid, which is disputed by the appellant. Though the issue, with reference to the title to this lot of ground and the validity of the donation, was expressly made in the pleadings, it was wholly overlooked in the judgment appealed from, nor has any reference been made to this fact in the brief of the counsel for the appellant, the only one with which we have been furnished.

As the appellant denies title in the appellees to the lot in question, and no such right has been recognized by the judgment of the court, the case is presented of an application on the part of two illegitimate colored children, in apparently destitute circumstances, claiming alimony from their father’s estate. Nothing in the law prohibits such an allowance. See Civil Code, Arts. 246, 247, 259. And the position of the appellee precludes an objection, on the ground that a sufficient maintenance had been providéd by the donation referred to in the pleadings. So far as respects the amount allowed for alimony, we think it cannot bo complained of as unreasonable.

It is ordered, that the judgment appealed from be affirmed.


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    State v. John Jackson.
    A party who excepts to the proceedings in a cause in which he is interested, must show in his bill all the facts, not otherwise of record, necessary to give the act complained of its erroneous complexion.
    One accused of murder cannot show, as a justification, that the deceased bore the general character of ? quarrelsome and vicious man. The effect of testimony, offered by the accused, that a pre-
    • vious quarrel existed between him and the deceased, would tend to aggravate rather than to mitigate the offence.
    When the accused goes to trial without objection, it will be too late after conviction to urge, as error, that he had not been served with a copy of the indictment and a list of the jurors who were to try him.
    If an imperfect copy of an indictment be served upon the accused, and he consent to go to trial, without insisting upon a perfect copy and the delay accorded to him by law, it will be too late to to make the objection after conviction.
    In the absence of a bill of exceptions, it will be presumed, that the accused accepted the jurors who tried his case, and it will be too late to object after verdict.
    APPEAL from the District Court of St. Martin, A. VoorMes, J.

      M. Mouton, District Attorney, for the State.

      B. Simon, Jr., and Debióme & Fuselier, for defendant and appellant.
   Merrick, O. J.

The accused having been indicted for murder, on the trial was convicted of manslaughter. He has appealed.

The first question which he presents for our consideration, is one which he raises by the following bill of exception, viz:

“Be it known, that on the trial of this case, the defendant having offered evidence to the general character of the deceased as a quarrelsome and vicious man, and also that there had taken place a previous quarrel between the decease and the defendant. The court having sustained the objections of the District Attorney to the admissibility of this evidence, the defendant, by his counsel, took this bill of exceptions to the opinion of the court.”

The party who excepts to the proceedings in a cause in which he is interested, must show in his hill all the facts not otherwise of record, necessary to give the act complained of its erroneous complexion.

The bill of exception, overlooking its contradictions, presents the simple question, whether the accused on a trial for murder, as a general rule, may show as a justification, that the deceased bore the general character of a quarrelsome and vicious man? It is not necessary to invoke authorities to show that the proof is inadmissible. The bill of exceptions also shows, that the court refused to allow the accused to prove a previous quarrel between the deceased and the defendant. The tendency of this last mentioned evidence, if admitted, would have been to aggravate the homicide and make that appear to he murder, which, under other circumstances, might perhaps he considered as manslaughter. Had the proof been offered by the State, for the purpose of showing a previous grudge and the malice aforethought, it might have been admissible. The prisoner certainly cannot complain that testimony unfavorable to his case has been excluded. Wharton Am. Grim. Law, p. 377 ; Ibid, 234-5 ; 5 Ann. 489.

It is further urged, that the accused was not served with a list of jurors who were to pass upon his trial, and with the indictment, two entire days before the trial.

The prisoner went to trial for all that appears, without making any objection ■on account of sufficient time not having elapsed between the service of the list of persons and copy of the indictment upon him, and the trial to enable him to prepare his defence and inform himself of the character of the jurors who were to decide upon his case. Son constat, but the cause was taken up for trial at the instance of the deceased. Cases may be imagined, as where there is danger of losing the testimony of a material witness, in which it would be of the greatest importance to the accused, that he should be able to demand an immediate trial. This being the case, it should be shown where this objection is insisted upon, that the accused did not consent to the trial.

On this subject, Mr. Justice Preston, in the case of the State v. Price, 8 An. 693, remarks: that “ in the progress of a criminal trial, there are forms of law prescribed purely for benefit of the accused. He has the right to plead not guilty, but may waive it, and plead guilty. Of this class, is the right and privilege to a copy of his indictment and list of his jury, two entire days before the trial.

“ These are entirely different from forms which are prescribed for the public good. The prisoner must be prosecuted by indictment in a capital case, and not otherwise. He must be arraigned publicly and cannot waive it by pleading privately. He must appear in person on trial, even if bailed, and' not-by attorney. Eor the certainty which should attend criminal prosecutions, for the public example and the happy effects of an open acquittal or conviction1, these forms cannot be dispensed1 with. They are unlike those in which the: public have no interest; which are purely personal to the prisoner; which, therefore, in our opinion, can be waived with his consent.

“ The accused were, moreover, entitled to a speedy trial by a jury of thevicinage. If circumstances might delay this trial for a term, they might well-waive part of the time allowed by law, for the examination of the qualifications of the jury, for the immediate enjoyment of the greater consi'f:;tioi;'.d right to a speedy trial. They did so, after being properly counselled and wisely admonished by the Judge, of the consequences in case of their conviction,, and we think, therefore, have no legal cause of complaint.”

In the case of the State v. Benjamiin, the court uses this language, viz:

“It is urged that there is error in the proceedings, because they do not show that a list of the jury which was to pass upon his trir.l, was served upon the prisoner two days before the trial. An order of court was made directing it, We find no objection made to going to trial; none by way of challenge;, no application for a new trial or motion in arrest on this ground, and are bound to presume, therefore, that the list was served upon the prisoner, or that he waived that formality and was content, with the jury that tried him.
“In this respect, the case is entirely different from that of the State v. Sow-ell, in which the objection was made when the prisoner was put on his trial. There must he an essential defect in the prosecution and which could not be waived in the Distinct Court, to induce this court to notice it, where the District Court did not pass, upon it¿ because no objection was made at the proper time and place.” 7 Ann. 48.-

The copy of the indictment and the list of the jury were served upon the' prisoner on the thirtieth day of May, and his trial took place the next day. In the absence of any bill of exception or other proceeding, showing a want of consent on the part of the prisoner, we are bound to presume, after verdict found, that the trial took place with his consent.

It is further objected, “ that it does not appear that a true bill was returned against the accused by the Grand Jury, there being no endorsement thereof on the copy of indictment, which was served upon him.”

The indictment has an endorsment upon it, “ a true bill,” which is signed by the foreman. If an imperfect copy was served, the objection appears to have been waived by the consent of the accused, to go to trial without insisting upon the service of a perfect copy, and the delay accorded him by law.

. It is further objected, “that the acused was tried by persons called during the progress of his trial, to serve as talesmen, when there is no law authorizing the selection and drawing of talesmen.”

The jury appear to have been empannelled without objection on the part of the prisoner. He is, therefore, in the absence of any bill of exception, presumed to have accepted the jurors who tried ,the case, as they were tendered him. After having taken the chances of an acquittal with the jury empannelled on his trial, without objection on his part, he must abide the consequences of the verdict of such tribunal, although it has fallen out against him. 10 Ann. 743.

While the objections made do not amount to such error as requires the reversal of the judgment, yet we cannot forbear to remark that the proceedings do not appear from the record to have been conducted with that order and form which ought to characterize a prosecution so grave in its consequences.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, with costs.


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    J. Sémère v. W. Sémère.
    With a view to emancipate her slave, A. passed an act of sale of him to i?., B, attempted, but failed, to effect his emancipation, and offered to return him to A,, who refused to receive him, and abandoned him to B. The heirs of A. sued B. to recover the slave, but, under the facts of the case, the court maintained the title of B,

    APPEAL from the District Court of St. Martin, A. VoorMes, J.

      G. 3. Mouton and M. VoorMes, for plaintiff.

      A. DeBla/ne & flasdier and Simon & Qa/yvy, for defendant and appellant.
   Merrick, O. J.

This case was before us last year, and remanded to take the answers of the defendant to interrogatories on facts and articles., 10 A. 704.

Those interrogatories arc copied into the opinion in the report of the case to which we refer.

Defendant says, in answer to the first interrogatory: “ Mo/i'ie MwrtheSémére, passed a sale of the slave Joseph or Gharles, for the purpose of having him emancipated. As I could not succeed to do so, I went to Miss Sémire (about a year before her death) to give her back the slave, she abandoned the slave to me.”

Ans. 2d. “ I did not pay any price for the slave.”

Ans. 3d. “ I do not remember to have so stated to any one. In several instances, the slave having misbehaved, I went to Miss Sémére (named Mrn'the) to tell her to take back the slave — she said the slave was mine — she would have nothing to do with the slave.”

The fourth answer does not appear to have been copied into the record.

Ans. 5th. “That was never agreed to, to wit: In case the emancipation should not be completed, the sale of the 5th of May should be annulled. At least I have no recollection of it.”

After the case was remanded, the plaintiff propounded further interrogatories, which are answered as follows:

1st. “ You have said, in answer to the previous interrogatories propounded to you, that you went to give back to Mi's. LaMarihe the slavs Joseph: When was it ? and was Joseph with you at the moment ? ”

Ans. “ When I went to Miss Marthe Marie Sémére, to tender the slave Joseph, the said slave was not with me, he being runaway at that time. I do not recollect the time I went there.”

2d. “Have you, within one year from this date, (the 27th of May, 1856,) acknowledged and declared to any one, that the slave, Joseph, did not belong to you ? Have you made the same declaration within six months from this date ? ' Have you made it three months since ? Have you stated the fact in the latter part of March, 1856.”

Ans. “ I have, within one year from this date, declared that the slave, Joseph, was not my property. I do not know whether I have said so since six months, for there are so many persons that question me about this matter, I may have said so to get rid of them.”

3d. Have you not, within nine months from the death of Marie Marthe Sémére, declared to some one, that the slave, Joseph, was not your property . Have you not delivered said slave to Julien SéméreV’

Ans. “ I did not deliver the said slave t© Julien Sémére, hut he took the said slave by force, that is, the slave went over to Julien Sémére, who, when requested by me to deliver back the slave, refused to do so.”

The instrument under which the defendant claims title, purports to be an absolute sale of the slave in question, by Marie Marthe Sémére, to him, with the usual covenants of warranty, &c. The consideration expressed,, the payment of which "was acknowdedged, was six hundred dollars. This act of sale was dated 5th of May, 1849, and passed before a Notary Public and twrn witnesses.

In December, of the same year, the testatrix made her will in nuncupative form by public act, by which she made provision for the emancipation of five other of her slaves, but she took no notice of the slave which she had previously sold to the defendant. Julien Sémére was appointed and instituted her universal legatee and heir.

It is alleged in the plaintiff’s petition, that the act of sale was simulated and made upon the express condition that, in case said slave should not be emancipated, said sale would be annulled and avoided. These grounds are urged upon our attention in argument, and also, that the obligation to emancípale the slave, was in the nature of a resolutory condition, according to Art. 2040 of our Code, which, when accomplished, operated the revocation of the obligation, placing matters in the same state as though the obligation had not existed.

If tlio plaintiff succeeds in this action, it will he because the answers of thé defendant, to interrogatories on facts and articles, have added something to his, apparently, perfect title, which subjects it to some one of the objections raised as aforesaid, by plaintiff’s counsel. Is the sale simulated? There is nothing in the answer of the defendant from which it can bo inferred that the title was a mere sham, not intended to invest William Sémere with ownership and property in the slave. On the contrary, the act of sale was absolute'on its face, and the party interrogated does not state any fact tending to establish the pretentions of the plaintiff, that the sale was, what is technically considered, a simulation. Was the sale upon the express condition, that in case the slave should not bo emancipated, that the sale would be null ? The party interrogated, says expressly, that there was no such condition agreed upon. This answer, which stands in the place of title, and which cannot be contradicted by parol, negatived the idea that the sale was upon a condition.

If it be admitted that the sale made by the testatrix was subject to the resolutory condition implied in all commutative contracts, it does not follow that the sale, in this instance, can be dissolved on that account; for, it appears that during the lifetime of testatrix, the defendant applied to the proper authority for the emancipation of the slave, but, owing to his bad conduct, in vain, and it is expressly admitted, that proceedings for this purpose are still pending in the Parish of St. Martin, but are opposed by sundry planters of said parish. There is nothing to show that defendant has not faithfully endeavored to fulfill the duties imposed upon him by the act of salo. He has not, therefore, incurred the penalty of the dissolving condition. If we look to the object and intention of the donor, we believe her intention is more likely to be carried out, by leaving the title to the slave, where she placed it, and with a person who has shown a disposition faithfully to perform the trust imposed upon him, than by leaving him with the plaintiff who does not appear to have such object in view.

The instrument, although it purports to be a sale, being in due form for such act, may be treated as an act of donation. 10 L. R. 85. It may be considered that it was made with a condition, or charge upon the donee, that he should appty for the emancipation of the slave ; yet if we take this favorable view of the conditions of the parties, there is no reason to declare the donation a nullity for the non-execution of the conditions imposed by the donee. G. O. 1555.

The offer to deliver or reconvey the slave to the testatrix, did not reinvest her against her will, and without any contract between the parties, with a title to the slave. C. O. 2431. Id quod nostrum est, sine facto nostro ad alium transferí non potest. The verbal declarations of the defendant to third persons, made without any intention of conveying his ownership to any one, cannot be considered as having the effect of defeating his title. The judgment must be affirmed.

It is, therefore, ordered, adjudged aud decreed by the court, that the judgment of the lower court be affirmed with costs.


author: BucnANAN, J. Merrick, C. J.

text:
    J. B. J. Louis, f. m. c. v. A. Richard.
    The authorities are not reconcileable on the subject of the right of a party to an act, his heirs and assigns to attack the act for simulation. It is more consonant with general principles that they should not be permitted to do so. But forced heirs are to be viewed as third persons, and have the right to attack the act made by their ancestors, on the ground of simultation.
    APPEAL from the District Court of Lafayette, Bupré, J.

      A. De Blano & Fuselier, for plaintiff and appellant.

      Crow & Cerard, for defendant.
   BucnANAN, J.

Plaintiff purchased of Pierre Landry in 1849, by public Act before the Recorder of the parish of Lafayette, a negress, slave for life, named Mwie, for the price of four hundred dollars cash; the seller reserving to himself the usefruct of the slave sold during his life, and with the further condition that should the slave die before her delivery to the purchaser, her loss should bo for the purchaser, without any right on his part to indemnity. In 185G, Pierre Landry having died, leaving five children, the plaintiff sues for possession of the slave Mwie under his contract with the deceased.

The children of Landry defend this action on the ground that the sale of Marie by their ancestor to plaintiff was simulated, that no consideration was given for the same; that the slave Mwie was all the property of their father at the time of his death; and that they are forced heirs.

The District Judge gave a judgment annulling the sale. This judgment is founded in part upon testimony of what the seller had said to a witness after the sale, viz: that ho had given back to Jean Louis the four hundred dollars which he had received from the latter as the price of the slave.

A bill of exceptions was reserved to the admission of proof of those declarations of the vendor out of the presence of the vendee; upon which we do not consider it necessary to express an opinion.

The authorities are not reconcileable on the subject of the right of a party to an act, his heirs and assigns to attack the act for simulation. The case of Croizet’s Heirs v. Gaudet, 6 Martin, 524, seems to recognize the right of the party to the act, as well of his heirs, to plead simulation. On the contrary, the case of Labauxe's Heirs v. Boudreau, 9 Rob. 28, denies that right. We consider the latter doctrine as more consonant with general principles. But the defendants are forced heirs of the deceased Pierre Landry, to the extent of two-thirds of his succession ; to that extent, they are entitled to be viewed as third persons, in relation to any contract of their father which had the effect of diminishing his succession. The Art. 2456, C. C., makes a presumption of simulation in relation to a sale containing clauses like the present, which may be invoked by these defendants. The burden of proof was upon the plaintiff, in the words of that Art. “ to establish the validity of the sale.” He has done this to our satisfaction.

It is therefore adjudged and decreed, that the judgment of the District court be amended, that the sale of the slave Mwie by Pierre Lanck’y to plaintiff by act before the Recorder of the parish of Lafayette, of date the 13th September 1849, be rescinded and annulled to the extent of two-thirds; and that plaintiff, be recognized as owner of one undivided third of said slave and her increase born since said date; that the defendants, children and forced heirs of Pierre Land/ry, be declared owners of two undivided thirds of said slave and her increase. That the cause be referred back to the District Court, for the purpose of making a legal partition between the parties ; that the costs of this appeal be borne by the appellees, and that the costs of the District Court be borne, one-half by plaintiff, and one-half by defendants.

Merrick, C. J.

I think the declarations of the parties to an act attacked as fraudulent may be offered in evidence by any person who has the right to make such attack. But as it is necessary that both parties should be shown to bo connected with the fraud or simulation, the declaration of one of the parties alone would not make out the case against both.

Whether the burden of proof in this case was in the first instance upon plaintiff or defendant, I am not prepared to say that there are not sufficient circumstances in the record to throw the burden of proof upon the plaintiff to show the reality of the alleged sale. O. C. 2419.

I therefore concur in the decision of my colleagues.


author: Buchanan, J.

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    D. Lyons, Under-Tutor, &c., &c. v. L. Andrews, Tutor.
    On the death of his wife, defendant qualified as natural tutor to his children. Having married a second time, he left his two daughters with their uncle and under tutor, and moved with the rest of his family out of the State. Plaintiff, the under-tutor, brought suit to deprive the father of his tutorship. The District Court dismissed the suit for want of jurisdiction. But Held: The act of defendant in changing his domicil has not deprived his daughters, who have never left the territorial limits of the jurisdiction, which originally conferred their guardianship upon defendant, of the protection of the-court which conferred such guardianship.
    Sequestration of the slaves maintained, and the appointment of the father as tutor annulled.
    APPEAL from the District Court of St. Landry, Dupré, J.

      T. S. Lewis & Porter, for plaintiff and appellant.

      Moore, curator acl hoc, for defendant.
   Buchanan, J.

The defendant’s first wife died, leaving four children, two sons and two daughters, issue of her marriage with defendant. He qualified as natural tutor of his children; and plaintiff, their maternal uncle, was appointed their under-tutor. In 1853, about a year before the institution of this suit, defendant (having married a second time) moved with his wife to Texas, taking with him his two sons, but leaving his daughters with their uncle and under-tutor, the plaintiff, who appears to have supported and educated them.

This suit is brought for the purpose of depriving the defendant of the tutorship of his children, on the grounds that ho has left the State without causing another to be appointed in his stead-, that previous to his departure, he failed to render an account of his administration ; that defendant has been unfaithful in his administration; and that he is a man of notoriously bad conduct.

Three slaves of defendant were sequestered at the inception of the suit, and a curator ad, hoc was appointed to represent him in the suit.

In an answer and amended answer, the curator ad hoc pleads the general issue, that the defendant had the right to remove from the State with his children and their property — that before removing from the State, he appointed an agent and attorney in fact, and that the matters and things set up in plaintiff’s petition have heen decided in a judgment which is pleaded in bar of the present action. ■ <

This suit was dismissed by the District Court, for want of jurisdiction. This j udgment seems to have been based upon the provision of the. Code, (Art. 48,) which declares the domicil of the tutor to he the domicil of the minor; and the decisions of the Supreme Court (4 M. R. 715; 5 N. S. 384; 10 Ann. 790,) which recognizes the right of the natural tutor to take minors and their property out of the State. But this case presents peculiar features which take it out of the scope of the cases cited. The under-tutor claims that the father of the minors who are in his (plaintiff’s) charge, be deprived of his tutorship for notoriously bad conduct. ‘ This is one of the grounds for removal applicable to tutors by nature. C. C. 326. Two of defendant’s children and wards have not been removed by the defendant from the State, although he himself has removed from the State. "We think that the act of defendant in changinghis domicil has not deprived his daughters, who have never left the territorial limits of the jurisdiction which originally conferred their guardianship upon defendant, of the protection of the court which conferred such guardianship. And we conclude, that the District Court should have maintained jurisdiction of the suit, so far as the daughters of the defendant are concerned.

Upon the merits, the witnesses all concur in representing defendant as a confirmed and habitual drunkard. Not to mention the details of the evidence of plaintiff’s witnesses on this head, a witness introduced by defendant states, on his cross-examination, that defendant was not always drunk, but would drink whenever he could get where there was any liquor. In addition, several witnesses declare that defendant is a gambler; and not only keeps had company himself, but takes his children to grogshops and gives them liquor. It is proved that his two daughters, who are with plaintiff, and who are jmung women, refused to go with their father to Texas, and claimed the protection of their uncle.

The evidence In the cause, of which the above is a very meagre synopsis, and which is entirely uncontradicted, shows conclusively that the defendant is not a proper person to have the guardianship of young females.

The sequestration appears, also, to have bden a proper conservatory measure.

The three slaves sequestered are but a small portion of the separate property of defendant’s deceased wife ; the remainder having been taken by him to Texas-

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the defendant be removed from the tutorship of his daughters, Amelia Ann Andrews and Jane Andrews; that the sequestration herein issued be maintained, and that the cause be remanded to the District Court, in order that a dative tutor to said minors may be appointed, and all other necessary and legal proceedings be bad in the premisos.

It is further decreed, that there be judgment of non-suit, as to so much of the demand of plaintiff as relates to the removal of defendant from the tutorship of his two sons, Albert and John, and that defendant pay costs of this suit in both courts.


text:
    Z. Perret & Wife v. P. S. Sanchez et al.
    An overseer cannot maintain an adverse possession of the the plantation against the owner who has hired him. If the owner discharge the overseer without just cause, before the term of his services has expired, the latter has a remedy, under the provisions of the Code in the title ofletting and hiring.
    APPEAL from the District Court of St. Martin, VoorMes, J.

      Be Blane & Fuselier, for plaintiff.

      J. ff. Olivier & O. II. Mouton and F. M. VoorMes, for defendants and appellants.
   Buchanan, J.

The plaintiff, Zenon Ferret, and the defendant P, Sidney Sanchez, made a contract by which Ferret engaged to manage and oversee the plantation of Sanchez, in the parish of St. Martin, for the space of four years, counting from the iGth December, 1853, for the salary of six hundred dollars per annum, payable at the end of each year.

About the expiration of the second year of this engagement, Sanchez observed to Ferret, in the presence of a witness, that he (Ferret) was unfit to-manage the plantation, and notified him to leave. Ferrets reply was, that he would do so. Some time after this conversation, Sanchez engaged another overseer and sent him to the plantation to take possession. Ferret absolutely refused to give him possession, or even to permit him to come upon the- plantation. Ferret also refused to receive freight which Sanchez had sent up from, the city to the plantation by a steamboat. Sanchez, (who is a resident of New Orleans) being- informed of these facts, proceeded to St. Martin, and with the assistance of some of the neighbors, after applying- to a justice of the peace, removed forcibly the furniture of Ferret from the house upon the plantation, and placed himself in possession thereof.

Plaintiff claims twenty thousand dollars damages for this forcible expulsion from Sanchez's premises. A jury has allowed him five hundred dollars, and both parties have appealed.

The District Judge charged the jury as follows: “That an overseer has not the possession of the house in which he resides, on a plantation which he manages for another; that the owner of the plantation may turn him out without resorting to any procedings before a court of justice, when any inconvenience or delay may result from the refusal of the overseer to leave the plantation ; that the overseer who persists in remaining on the plantation after he has received notice to quit it, becomes a trespasser, and the owner may then use towards him that sort of violence which may be necessary to overcome his resistance,' and turn him out forcibly, inasmuch as his possession of the premises is not the same as that of a tenant or owner, and cannot give rise to the same proceedings in ejectment.” This charge is a correct exposition of the law-

The contract for the hiring of labor as overseer of a plantation, can never entitle the overseer to maintain an adverse possession of the-plantation" against the owner who has hired him. Such a proceeding on the part of the overseer mistakes entirely the object of the contract If the owner of the- plantation discharges the overseer without just cause, before the term of his services has expired, the latter has a remedy, under the provisions of the Code in- the title of lotting and hiring ; but he has no right to resist the -owner in obtaining-possession of his property, in other words, to refuse to be discharged, until a judgment shall have pronounced upon the contract between himself and his employer.

The plaintiff has illegally refused Sanchez entrance into his own house, and is therefore to be regarded as a trespasser. His possession of Sanchez’s house was tortious, and his expulsion therefrom cannot, oí itself, give him any claim to damages. The whole evidence negatives the idea of any malice on the part of Sanchez. He addressed himself to a magistrate, and obtained what he supposed a judgment, and an execution in the nature of a writ of possession. There is nothing in the evidence which justifies the charges of brutality and violence, in the execution of this process, contained in the petition.

The record contains a list of furniture headed as follows: “ Nous soussignés déclarons avoir fait estimation du dommage du menage de Mr. Zenon Ferret, comme suit.” Each article in this list has an appraised value. The signers, Oz'ere Le Blanc and Laden Broussard, declare that they appraised the furniture, and it was pointed out to them at the plaintiff’s residence, and that they did not see the furniture before the day of their appraisement. They do not say what day that was. The only date which the appraisement bears, is that of its filing in court, the 20th June, 1850, more than four months after plaintiff’s expulsion from Sanchez’s house. There is no proof of its indentity with the furniture removed on that occasion, nor that the damage assessed, was caused by the acts of the defendants.

The defendant Sanchez offered to prove, in mitigation of damages, the incompetency of Perret as overseer, mismanagement of the plantation, and general improper conduct of Perret as overseer. This evidence was offered after Perret had given in evidence the contract between himself and Sanehez, which had been received to show the nature of Ferret’s possession of the house. On objection made by plaintiff’s counsel, this evidence offered by Sanchez, was rejected by the court, as irrelevant. It is unnecessary for us to pass upon the correctness of this ruling, as the charge to the jury already commented upon and approved by us, rendered the evidence offered immaterial, even supposing it to have been admitted.

It is therefore adjudged and decreed, that the judgment of the District court be reversed, and that there be judgment in favor of defendant, with costs in both courts.


author: Lea, J. Merrick, C. J.

text:
    State v. J. R. Vion
    A bond given for the appearance of the accused after be has been convicted of larceny is null, and the surety un such a bond wilL be discharged.
    APPEAL from the District Court of St. Landry, Lwpré, J.

      W. Mouton, District Attorney, for the State.

      Martel & 3ardy, of counsel, for the State.

      T. 3. Lewis & Porter, for defendant and appellant.
   Lea, J.

Jules Ponpeville having been convicted of larceny, was, after con viction, permitted to give bond, with JeanEemy Vion as surety, for his appearance to receive and submit to such sentence as might “be passed upon him by the District Judge.”

The prisoner having failed to appear when called to receive the sentence of the law, the bond was [declared forfeited. It is urged on behalf of the appellant, that the bond having been exacted in violation of a prohibitive Art. of the Constitution, carries with it no obligations. It is evident that the District Judge had no right to exact the bond or to receive it when tendered, the offence of which the prisoner was convicted, being punishable by imprisonment at hard la. bor. If the bond given, was one conferring civil rights under a contract, we might be disposed to apply the maxim, “ volenti non fit injwia,” but the prohibition in Art. 104 of the present Constitution, was not intended for the protection of private rights which might be waived by parties in whose favor it was established, but it was intended to place beyond the reach of legislative Control or of judicial action, a principle of public policy which in the case at bar has been violated. The consent of parties cannot give validity to' a contract which is in[direct violation of a constitutional prohibition established as above stated, not for the protection of private rights,- but upon considerations of public policy.

It is ordered, that the judgment appealed from be reversed, and that there be judgment in favor of the defendant and appellant, Jecm Remy Vion,

Merrick, C. J.

Perhaps it is in the power of the legislature to authorize the courts to admit to bail even after a verdict of guilty, as the Art. 104 of the Constitution may have been intended in famorem Mbertatis. But until such power is expressly granted, the prohibition contained in the Art. with its exceptions must be considered as the rule governing the courts. The Act of 1855, p. 155, sec. 82, does not confer the power, to admit to bail after verdict found. The term comoioUon in the Constitution was probably used in the sense of the finding of the accused guilty by the jury.

I therefore concur in the conclusion of my colleagues.


author: Lea, J.

text:
    V. Martin v. J. Breaux et al.

      A whicK starts from, certain points and Hues not recognized as boundaries the parties themselves and not shown by the evidence to be true points of departure, cannot be made the basis of a judgment establishing a boundary1.
    Ño effect can be given to a plea of prescription where the boundaries are rto‘t established in a manner to show to what property the plea must be applied.
    APPEAL from the District Court of Lafayette, JDtupr^ J.

      JS. Simon, for plaintiff and appellant.

      & S. Mouton, T. H. Lewis and Grow & Gemrd¡ for defendants.
   Lea, J.

In this case the plaintiff, claiming to be' the owner of a tract of land situated on the Bayou Vermillion, alleges that the boundaries which had been once fixed, separating- his land from those owned by the adjoining proprietors, both above and below him, were no longer to be seen, and that said adjoining proprietors, though amicably requested,- had refused to fix the limits extrajudicially. He therefore prays that they be cited, that after due proceedings, said limits may be fixed according to law, and a surveyor appointed for that purpose. Both of the defendants aver that they have been in the peaceable and uninterrupted possession of tlier respective proprieties with metes and established boundaries as they now exist for more than thirty years. They plead respectively the prescription of ten, twenty and thirty years. One of the defendants, Alexander Latiolais, treating the plaintiff’s demand as a petitory action, has called in warranty his immediate vendors, the representatives of Joachim Arceneaux and Oidalize Arceneaux, widow of Joseph Mouton. In case of eviction, ho, moreover,as a possessor in good faith claims compensation for the improvements put upon the promises. It appears that two surveys were made in accordance with the orders of the court, for the purpose of determining the boundaries of the respective tracts. But it was properly held by the District Court, that neither of these surveys could be made the basis of a judgment, as they were made by starting from certain points and lines not previously recognized as boundaries by the parties themselves, and not shown by the evidence to be true points of departure. Upon the question of prescription we do not find that the evidence establishes a possession of thirty years with fixed and recognized boundaries, serving as division lines, which are now apparent, or which could be ascertained with certainty, and in the absence of such ascertained boundaries, the limits should have been fixed in accordance with the respective titles of the parties. The District Judge considered that it was the duty of the plaintiff to have established the true lines by proper evidence, but wo think that he would have made out his case for all the purposes for which the suit was instituted, upon proof that there no longer existed a fixed or recognized boundary, determining the limits of their respective tracts. As the surveys appear to be defective we are not disposed to conclude the parties by a judgment referring them at once to their titles for the ascertainment of a boundary, but we think the report should have been rejected, and a new survey ordered, and in the event that no recognized boundary can bo traced, division lines should be marked out by a reference to the respective titles of the parties, a result which it appears might have been attained, as in the united tracts there appears to be a sufficient quantity of land to give to each the respective proportions called for by their titles.

It is ordered, that the judgment appealed from be reversed, and that' the case be remanded for further proceedings according to law, and in conformity with the foregoing opinion, the costs of the appeal to be paid' by the appellee..


text:
    W. S. Donnell v. W. H. Parrott & Wife.

    Where plaintiff applied for a new trial, on the ground that the introduction of his letters and account sales, to prove facts specially pleaded, of which facts those letters and accounts were the best and most direct evidence, had taken him by surprise, Hclti: that the new trial was properly refused.
    APPEAL from the District Court of St. Landry, Dvpré, J.

      J. E. King, for plaintiff and appellant.

      Martel do Eardnj, for defendant.
   Buchanan, J.

This case is before us upon a reconventional' demand of Mrs. Parrott for cotton (181 bales) sold by plaintiff, as factor, and the proceeds of which he has not paid over. The judgment of the court below is in favor of Mrs. Pa/rrott for $6,836, based upon account sales of 60 bales, of date January 19th, 1854, of 80 bales, of date 25th February, 1854, and an acknowledgment of plaintiff in a letter dated 20th February, 1854, of the receipt of 41 bales per steamboat Fed Fiver, of which he does not appear to have ever fur. nished an account.

The objections made by appellant to the judgment of the District Court are two-fold:

1st. That Mrs. Parrott only claimed a judgment against him for $1,000, and cannot recover more than she demanded.

2d. That it is not proved the .cotton sold and received by him, as proved by his account sales and letters, was Mrs. Parrott's cotton, the correspondence being carried on with Mrs. Parrott's husband.

I. It is true that Mrs. Parrott alleges an indebtedness of plaintiff to her in the sum of one thousand dollars; but this is stated in her pleadings as the balance due her by plaintiff upon cotton sold by him for her, after crediting him with the amount of two mortgage notes of Mrs. Parrott, supposed to have been held by plaintiff; and the plea of Mrs. Parrott concludes in these words: “ Now this respondent prays that the court will decree the said mortgage, with the notes it was intended to secure, to be cancelled, annulled and void, and that the premises considered, she may have judgment for such balance as may be found due to her, after adjusting the account, and that she may have such other relief as to justice and equity may seem best.”

The District Judge considered that the proof in the cause did not establish that plaintiff was the holder of Mrs. Parrott's notes at the time he sold her cotton, and consequenetly did not allow the notes as a credit, or partial payments, in account current; but under the prayer for an adjustment of the account and for general relief copied above, gave judgment for the whole net proceeds of the cotton, taking the sales of that portion of which account sales have been rendered, as a guide in estimating that portion of which no account has been rendered. In so doing, we do not find that the Judge has allowed more than has been demanded.

II. The answer and plea of Mrs. Pcm'oti allege that she had a large estate 'in lands and slaves at the time of her marriage, the control and management of which were secured to her by marriage contract; and that there were shipped to plaintiff more than one hundred and eighty bales of cotton raised on the lands and cultivated by the slaves of Mrs. Parrott. In support of these allegations the marriage contract and other documentary proof having been first offered, by which it was established that Mrs. Parrott had a separate estate, the letters and accounts of plaintiff, were next offered and received without any objection or reservation, to establish that her crops had been shipped to plaintiff, and received and sold by him.

In an application for a' new trial, the plaintiff complains that he was taken by surprise by the effect given to these documents by the District Judge. The Judge properly refused the new trial. It is out of the question to pretend that the plaintiff could have been surprised by the introduction of his letters and account sales to prove the facts specially pleaded, of which facts those letters and accounts were the best and most direct evidence. The obiter dictum of Judge Martin in Skillman v. Leverich, is too broadly worded, and cannot, at all events, control the present case.

The judgment of the District Court has done justice between these parties. There is strong reasons for believing, although the fact is not positively proved, that plaintiff was the holder of notes of Mrs. Parrott secured by mortgage, to an amount nearly equal to the net proceeds of these cottons at the time he sold them. He has chosen, as the evidence shows, to use these notes in the purchase of a steamboat, instead of applying them to the extinguishment of his indebtedness to Mrs. Parrott in account current. The plaintiff has no reason to complain that the account' should now be closed in a mode of his own choice.

Judgment affirmed, with costs,


text:
    B. C. Crow and R. Cade v. Mechanics’ and Traders’ Bank.
    It is no part of the duty of a bank to employ counsel, .and bring- suit upon notes left with it on deposit.
    APPEAL from the District Court of Lafayette, Dupré, J.

      M. E. Girard, for plaintiffs and appellants,

      Swapze & Moore, for defendants.
   Lea, J.

The plaintiffs, against whom the defendant had obtained a judgment, in solido, for the sum of $1,677, with_seven per cent, interest, from the 25th of January, 1843, have obtained an injunction against the execution of said judgment, on the ground, (as they allege,) that with the view of cancelling and paying said debt, they deposited for collection in the office of said bank at Opelousas, four notes described in the petition, amounting to more than the sum due upon the judgment. They allege that the bank is responsible to them in the amount called for by said notes, which should home leen collected and applied to the payment of said judgment, as said notes must he presumed to be prescribed against. Wherefore they pray for an injunction. Assuming all the facts set forth in the petition to he true, they do not establish a cause of action sufficient to justify the granting of an order of injunction. A deposit of notes in a banking institution, (in the absence of any special contract specifying distinct obligations,) only imposes upon the bank the duty of receiving the money if paid, and if not paid, of making such demand of payment and causing to be given such notices of demand and non-payment, as might fix the liability of the different parties to the notes.

It is no part of the duty of the hank to employ counsel and bring suit upon notes thus left upon deposit.

It is the business, of the owner of the notes, in such cases, to bring suit upon them himself, if he thinks it to his advantage to do so, hut he cannot hold a mere depositary fiable for a non-performance of acts which he should have attended to himself,

It is not alleged that the depositors have lost their recourse against any of the parties to the notes, otherwise than by the alleged failure of the bank to institute suit thereon, whereby (as the plaintiffs allege in their petition) “said notes must be presumed to he prescribed against.”

The liability of a mere depositary with authority to receive, is very different from that of a collecting agent, to whom an assignment has been made for the purpose of collection. The plaintiffs are entitled to plead in compensation of the judgment against them, such sum or sums of money as may have been received by the bank and have not been paid over to the plaintiffs, or their .order, or otherwise accounted for.

An examination of the evidence has brought us to the same conclusion as that of the District Judge: that the execution was credited with all that had been received by the bank, and that the injunction was sued out without proper oause or just foundation.

We have been asked, in any event, to amend the judgment in favor of the plaintiff, by reducing the rate of interest allowed from the date of the injunction, from ten to eight per cent., that being the highest rate of interest allowed by law. This application rests upon the authority of repeated decisions which we do not feel at liberty to disturb. See 9 An. 11; also 8 An. 441, with references.

The defendant has also asked for an amendment of the judgment in their favor, allowing twenty per cent, damages, as provided by the Act of 1831. We think a proper case is presented for the allowance of damages. As the general result of these alterations will be to increase the judgment in favor of the appellee, the appellants should pay costs.

It is ordered, that the judgment appealed from be amended; that the injunction herein obtained be dissolved and set aside, and the Sheriff ordered to proceed with the execution of the judgment according to law. It is further ordered, that the defendant do have and recover of the plaintiffs, Basil O. Grow and Robert Oade, with Benjamin P. Paxton, the surety on the injunction bond, in solido, the sum of $200, as damages, together with one per cent, additional interest on the amount of the judgment enjoined from the date of the injunction to the dissolution of the same, and that plaintiff pay costs in both courts. It is further ordered, that, except as herein amended, the judgment appealed from be, in other respects, affirmed,


author: Cole, J.

text:
    Lattier, Administrator, v. Prudent Rachal.
    The only persons who have an interest in opposing the submission by an Administrator of any of the interests of a succession, to arbitrators, are the heirs and creditors.
    APPEAL from the District Court of Nachitoches, Ohaplin, J.

      J. G. Campbell, far plaintiff.

      Hamilton & Chaplin,. for defendant and appellant.
   Cole, J.

This appeal is taken from a judgment of the lower court, homologating- the award of the arbitrators in relation to the matters in- dispute between the parties, plaintiff and defendant.

On the 25th of April, 1854,. the plaintiff, acting in the capacity of administer of the succession of Dominique Itaehal, father of the defendant, and Prudent Pachol, the defendant, entered into an agreement to submit the case then pending between them to judicial arbitrators.

The arbitrators selected accepted the trust, and were qualified on the 19th July, 1854; and on the 4th of June, 1856, they rendered their award.

On the 27th of August, 1856, the plaintiff applied for a rule on defendant, to show cause why the said award should not be affirmed and made the judgment of the court.

The defendant answered and urged several objections to the homologation of the award, which will- be considered in their order:

1st. “ That the administrator being without interest, eould not submit the matters in dispute to an arbitration.”

The only parties who have an interest in opposing the right of an administrator to submit any interests of the' estate to arbitration are the heirs and creditors. In this ease,, it does not appear that the estate is insolvent, and no opposition has been made by the creditors to the submission to arbitration of the lawsuit that existed between the parties, and there is an admission in the record that “ the widow and heirs of Dominique Rachal approve and ratify the submission and award made in this case, and desire that the same be homologated.”

Although then, it should be conceded, that administrators have no right to submit to arbitration the interests of the estate they may administer, yet as such prohibition is intended to protect the right of parties interested, submissions thus made are not absolutely null, and their want of authority may he' cured by the acquiescence and ratification of the parties represented by them.

In the case of Delabigarre v. Second Municipality, 3 A. 238, it was held, that when an executor had compromised a claim of the succession without having been authorized by the court, the heirs alone could take advantage of the omission.

2d. “That after the agreement had been entered1 into, tbs plaintiff violated it by filing an amended petition.”

This amendment made no change in the issue, and was really advantageous to defendant, for it set forth minutely the items of his account that would be opposed. It does not appear there was any objection made to- the filing of the amended petition. The amendment and submission were both filed on the same day, but the former appears from the minutes to have been filed first in order of time.

Besides, defendant was often present at- the sessions of the arbitrators, and J. B. Smith, one of the arbitrators, was also his counsel in the cause, which was submitted to arbitration, and A. RPierson, who was'the counsel of plaintiff, was the other arbitrator.

It is reasonable to suppose that the filing of this amended petition was done with the consent of defendant, or at least, that he agreed it should be considered by the arbitrators in their examination of the rights and liabilities of the respective parties.

3d. “ That the said award was to be filed on or before the 15th November,-1854, whereas it was only filed on the 4th of June, 1856, and that the arbitrators had no light to extend the time.”

There were several motions for extension of time made by the arbitrators and counsel of the parties, during the progress of the sessions of the arbitrators, and- on the 16th of May, 1856, the following agreement was filed in court:

“In this case it is agreed by the undersigned, arbitrators- and counsel, that the time of rendering their award shall be extended to the 16th day of June, 1856, and that all questions that have to be settled by the court and the homo-' logation of the award, be heard and decided by the court in .chambers, reserving the right of either party to oppose the award, as if this agreement had not been made, and with the right to appeal from the judgment of the court, as if this judgment had been rendered in open court; they move the court to extend the time according to this agreement.

Signed on this 15th day of May, 1856.

(Signed) A. H. Pierson,

Arbitrator and Counsel!

John B. Smith,

Arbitrator and Counsel;

The following order was made on the 16 th May, 1856 :

“ In this case on agreement filed, it is ordered that the time allowed the arbitrators to render their award be extended until the 16th day of June, 1856.”

The award was filed on the 4th of June, 1856. The evidence also shows that defendant was often present at the sessions of the arbitrators, and never objected to the extension of time ; besides his counsel agreed to the same, and it is proved,' that defendant considered J. B. Smith as acting as counsel, and also as arbitrator, up to the time of rendering the award.

It appears also, that defendant was cognizant of the extension of time, and made no objection.

4th. “That defendant was not notified of the time and place of meeting, nor was he afforded an opportunity of presenting all of his evidence.”

The testimony establishes that he was often present at the meetings of the arbitrators. J. B. Smith testifies that although not positive, he “believes he (defendant) was present at the session before the award was signed.”

A. II, Pearson testifies, that “ both parties attended their sessions during the present year, previous to the award.”

The objections of the defendant to the award are strictly technical, and do not touch the merits.

As we do not consider there is any force in the opposition to the award, the judgment must be affirmed.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs.


author: Spojtord, J.

text:
    Shoemaker v. H. &. L. Bryan.
    Under Art. C. C. 2720, which is held to apply to all persons except menial servants, the right of action of a pilot, who lias been discharged “without any serious ground of complaint?' for his wages for the full term for which he was employed, accrues immediately upon his discharge, and the prescription of one year against his suit will commence when the right of action has accrued.
    APPEAL from the District Court of Natchitoches, Ghaplin, J.

      Hamilton & Ghaplin, for plaintiff.

      J. B. Smith, for defendants and appellants.
   Spojtord, J.

The plaintiff sued the defendants, owners of the steamer Belle Gates, for twenty-one hundred dollars, alleged to he the balance due him for his wages as pilot on the said steamer. He had judgment and the defendants have appealed.

The prescription of one year was pleaded and is applicable to the case, the wages of officers, &e., of vessels being governed by that prescription. O. O. 3499 §6.

The plaintiff has alleged and proved a contract for a certain time, to wit: for the season, beginning in January and ending on the 1st September, 1855, during which, the defendants agreed to employ him at a certain salary, as a pilot upon the Belle Gates, in the Red River trade. He also answered that “before the end of the season, the defendant, Leon Bryan, took the said boat up the Arkansas River, and discharged petitioner without any just cause whatever.” The time when the boat was taken out of the Red River trade, and when this alleged discharge, therefore, took place, is fixed by one of the plaintiff’s witnesses in the month of March, 1855. “ If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries- which he would have been entitled to receive, had the full term of his services arrived.” C. O. 2720.

This article has been hold to- apply to all persons, except menial servants, who hire out their services for a fixed period, as for instance, clerks, attorneys-at-law, employed by an insurance company for the year, at a salary, superintendents of cotton presses, agents employed to assist the claimant of an estate in recovering it, &c., &c. Orphan Asylum v. Mississippi Marine Insurance Company, 8 La. 181; Beekman v. New Orleans Cotton Press, 32 La. 68; Angelloz v. Rivollet, 2 Ann. 652; Lautigue v. Peet, 5 Rob. 91; Decamp v. Hewit, 11 Rob. 290.

And it is well settled that when there is a discharge of the employe, as-is alleged in this case, without any serious ground of complaint,, the salary stipulated for the whole term becomes due, and the right of action therefor accrues immediately upon the discharge Sauborne v. Orleans Cotton Press, 15 La. 360; Shea v. Schlatee, 1 Rob. 319.

The plaintiff’s salary for the season, therefore, fell due in March, 1855, when he was discharged. And prescription commences to run when a right of action accrues. The citations in this suit were not served until the 21st August, 1856. The term of prescription was then complete, as there had been no interruption in any of the modes pointed out in Article 3500 of the Code.

It is, therefore, ordered, that the judgment of the District Court be avoided and reversed, and that there be judgment for the defendants, with costs in both courts.


author: Merrick, C. J.

text:
    Succession of Beer, Deceased—Opposition of Goodman et al.

      Á sale made by two of three parties, of tfieir interest in a commercial co-partnership, to the third partner, does not deprive- the creditors of the partnership of- their privilege upon such effects of the partnership as may be found in the succession of the latter partner, the vendee,, at hi» death.
    APPEAL from the District Court of Rapides, Ogden, J.

      M. Ryan, for the administrator..

      Hyman & Cazabat, for the opposing creditors and appellants.
   Merrick, C. J.

This case presents the single question, whether or not the sale made by two out of three of these partners of their interest in a commercial co-partnership, to the third partner, deprives the creditors of the partnership of their privilege upon such effects of the partnership as may be found in the succession of the latter partner, the vendee, at his death ?

Article 2794 of the Civil Code, declares that “ the partnership property is liable to the creditors of the partnership in preference to those of the individual partner ; hut the share of the partner may, in due course of law, be seized and sold to satisfy his individual creditors, subject to the debts of the partnership ; but such seizure of legal operates as a dissolution of the partnership.”'

Here the privilege is given the creditors of 'the partnership by express law. It is now incumbent upon the party who maintains the loss of the right thus expressly granted, t® show some provision of law extinguishing the privilege in this case or excepting it from the operation of the general rule. None such has been pointed out.

Article 3244 declares that privileges are extinguished by the extinction of the thing subject to the privilege; by the creditor acquiring it; by the extinction of the debt which gave birth to it- and by prescription. In the case ■of the vendor of movables, he retains his privilege so long as the goods remain in the possession of his vendee. 3184, 3194, 3230, C. O.

Beyond these express provisions of layv we are not aware of any enactment bearing upon the question before us.

On general principles, we think it ought not to be in the power of the partners by arrangements among themselves to defeat the rights of their creditors, but that so long as the partnership effects remain in the possession of any of the partners, they must be held subject to the privilege of the creditors of the partnership. The rights of the creditors of a partnership would be too precarious if they might be defeated by the sale of one or more of the partners of his interest in the partnership to his co-partners. The law has not said that they shall lose their right of preference by such change in the number of the members of the firm, and we cannot decree what the law has not ordained. Id qmd nosPrum est, sine facto nosPro, adalium Pramferri non potest.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court for a new trial, with directions to allow all the claims of B. Goodman & Go., as privilege claims upon such of the partnership effects of Isaac Beer & Go., or their proceeds, as may he found in the hands of the administrator of the said succession of I. Beer, the appellees paying the costs of the appeal.