text:
    Succession of Harkins.
    The property of a succession is llie common pledge of the creditors, except so far as privileges have been lawfully .acquired.
    An administrator is the trustee of. the creditors; his first duty is to them; he is bound to watch over their interests.
    An attorney at law will not he allowed to testify as to communications made to him by a client in the course of his professional employment, -unless the client himsdlf consent to their disclosure.
    Parol evidence of declarations of a mortgageais admissible to establish the 'fraudulent character of a mortgage, when offered by one not a party to the act. The weight to be given to such proofs, goes to the effect, and not to the admissibility of. the evidence.
    If a creditor of a succession choose to show-that he has combined with the administrator to injure other creditors, no rule of law will prevent him from doing so,. nor the. creditors from availing themselves of the legal consequences in their favor.
    Although, under our laws, an attorney at law is a competent witness for his client, the position of an attorney offering himself as such is one of extreme delicacy both to the witness and the court; and it is always desirable, for the harmony of the profession, the independence of the bench, and the public confidence in the administration of justice, that an. attorney should not boa witness, except in extreme cases, when all other means of proof are impossible; and then the attorney should withdraw from professional.participation in the cause.
    Appeal from the District Court of Claiborne, Taylor, J.
    Evans,.for .the appellant. A. Lawson, for the opponent.
   The judgment of the court was pronounced by

Slidell, J.

In April, 1845, feeder, as administrator of Harkins, :filed -an account of his administration. He states payments of several claims made -by him, and a mortgage claim held by himself individually for $6,240 and.interest, evidenced by the notes of the deceased, and a mortgage executed by him in feeder’s favor. He also gives the estate credit for various sums of money and notes received by him from.sales .-of property of the succession, stating the whole amount of notes, cash, and assets that have come into his hands at $5,850. Ho alleges that the debts set forth in the account rank .in-the order in which they appear, that they were privileged debts against the succession, and that lie has paid them; that there are large amounts of money owing by the estate to different persons as ordinary creditors, but that he has .not placed their debts on this statement or account, as there are no funds to pay the ordinary creditors, the entire property having been .absolved by the privileged debts. He prays for the homologation of the account, and to be dismissed from the administration; also for judgment in his.favor for the balance due him as exhibited by the account, and for the recognition of his mortgage and privilege. The account .was accompanied by certain vouchers, among which is one showing that the administration had given Robinson certain mortgage notos, proceeds of sale of the property of the succession, on account of his claim, and had taken from Robinson a bond of indemnity, with a surety, to hold Veedor harmless from any injury he might sustain in consequence of such transfer to Robinson.

To the account and petition of the administrator, Robinson filed an opposition. He represents that he is a privileged creditor of the succession, as the holder of .a judgment for $2,070 and interest, rendered and recorded before the -death of the deceased, .by which he acquired .a privilege on all the .real estate and slaves of the deceased, which took effect on the 27 May, 1840, the date of registry. Ho opposes the.allowance of any of the items charged by the administrator in favor of any other creditors, and .alleges that no tableau of distribution has ever been homologated authorising their payment, nor any judicial authorisation in any way obtained with regard to such claims and their payment. He opposes, specially, the claim of Feeder, alleging that the deceased never received any consideration for tho notes held by the administrator individually; that they were given in fraud ; that if there was any indebtedness of the deceased to .Feeder, it did not exceed $1,860 ; that .Feeder had .promised .the opponent that he would not claim a privilege over him for said amount of $1,860 ; and that if tho opponent would not bring an action to annul .his mortgage, he would share pro rata with him, and-upon the basis of $1,8G0 for Reeder's claim; and that, in consideration of .this promise, he did not bring an action to annul the mortgage in favor of Feeder. He prayed for the disallowance and rejection of the account, and-for judgment.for his, claim, with privilege. The administrator .answered the opposition by a general denial, and .plea .of the prescription of five years.against the alleged right and claim of Robinson to annul the mortgage.

At the trial of this.opposition, Robinson offered in evidence the judgment in .his favor, and the.certificate of .its registry. The judgment .appeared .to have been rendered on confession. The proces-verbaux of sales of the property of ;the succession were also offered. It was admitted, “ that the legal notices were made b.y the administrator.” It was also admitted that one Sarah O. Madden, had a recorded judgment prior to Feeder’s, and that the judgment rendered in ,the cause was not .to prejudice her rights. The administrator offered his account.and vouchers, including the notes of the deceased and the mortgage in Feeder’s favor. The certificate of registry of this mortgage, appended .to .a .copy of the mortgage which was passed before the parish judge, states that •** it is a true and correct.copy taken from the original act,on file.and of record in ,-my office” ; .but it does .not state whether it was .recorded in the .mortgage book. The testimony (if,a witness, who is acknowledged to have been an attorney at daw. was offered and rejected. The purport of his testimony ,was that, in ,1840, the witness, at the request of Feeder and Harkins, drew up .the form of .an act of tiiortgage.from Harkins to. Feeder, on several slaves .and .a tract of .land, to secure the payment of $6,000; that, he thinks, Feeder was tho creditor of Harkins lor.about $1,800.only, .but that .Faeiier-was to pay some other .debts for Harkins, which would make an indebtedness of $3,000, and that the object of the mortgage was not only to secure Feeder, but to protect Harkin's property from being seized by Robinson, who had then sued him, and was .about to obtain judgment at the term of the court then in session. There was also an admission that Feeder had made Robinson a partial paygment, in notes which belonged to the succession. There was also offered the testitnony of IlarToims’ widow, going'to impeach fee existence .of the indebtedness acknowledged .in the mortgage. This testimony was rejected. The attorney and counsel of record of the opponent Robinson was also offered as a witness, and notwithstanding the exception of 'Veeder, was received. He states that he called upon Veeder and threatened him with a revocatory action to set aside the mortgage, unless he made some arrangement about it in favor of Robinson; that Veeder said, that he would not claim more than was due to him, .which was about §2.500 ; that Robinson should have the benefit of an equal privilege wife him; and that they should be paid pro rata for what was really due ; that, .in consideration of this understanding, in which Robinson acquiesced, fee revocatory action was not brought; feat he received the partial payment in notes for his client, in carrying out this agreement. It is also proper to remark feat we find no prayer for an order of publication, nor any order to that effect, nor any appearance at fee trial by other creditors.

Upon these proceedings and evidence the court below rendered a judgment, sustainingthe opposition of Robinson, ns to a portion of the debts paid, and,as to the claim of Veeder by reducing it to §1,850, placing the two parties litigant on an equal rank as creditors, establishing fee amount due to Robinson, and de~ creeingtheir claims to be paid pro rata out of the proceeds of fee sales of the slaves of fee succession. The rights of Sarah O. Madden were reserved by the decree. From this judgment Veeder has appealed. He claims a preference over Robinson, or at least feat the amount allowed to Robinson should be reduced. The appellee in his answer to fee appeal prays an amendment of the judgment in .his favor, so as to allow him fee whole amount claimed by him."

We have been feus-minute in our statement of this case, because we have come to fee conclusion,feat we cannot grant fee prayer of either party, but must remand this cause for further proceedings.

The property of a succession is fee .common pledge of fee creditors, except so far as privileges have been lawfully .acquired. An administrator is the trustee of fee creditors ; his first duty is to them, and his imperative obligation is to watch over their interests. The law has carefully defined the special duties of fee administrator wife regard to fee distribution of fee funds of fee estate, &c. A tableau of distribution must not only be filed, but its filing published, so feat all creditors may have an ample .opportunity to present their rights; and fee same publicity must precede an administrator’s discharge. A judgment of fee court rendered after a strict observance of fee formalities prescribed by the Code, is fee warrant of fee administrator for paying creditors. We cannot, wife any propriety, take fee loose admission made by fee administrator at fee trial, as .proof that these formalities have been fulfilled, in a case where, according to his own statement, the estate is insolvent, and a preference is claimed by himself, which exhausts fee funds in his hands; to say nothing of fee state of facts presented in this cause. Nor. as regards fee opponent, who has received a-partial payment, without any order of court, out of -fee funds of the estate, .under fee circumstances stated, can we hold that there .is sufficient evidence feat the tableau has been duly advertised. His judgment may have been upon a just debt; but its payment can only be enforced contradictorily wife fee other creditors, upon due -publication. ’There are cases in which it is fee imperative duty of fee court-to interpose its authority, even when not called upon ¡to do so by fee parties immediately before it.

■In-remanding this cause we shall, express no further opinion-upon the facts presented, nor the legal consequences of those .facts upon the rights of the parties. They- can be discussed contradictorily with the other creditors of the estate, who are not now before us. It is proper, however, to notice some bills of exception, presented by the record, with the view to simplify and facilitate the future proceedings in this cause.

A bill of exceptions, :taken by Robinson, states-that he offered the testimony of the.attorney at law, taken under commission.as already stated, .which 'Was objected to>by .Feeder, .upon the ground that the information was obtained hy the witness-from Veeder and Harkins, in a communication .made by them to him as.an,attorney at law, which objection was sustained by.the.court. We are not able to,say with perfect certainty, uuderthe case as presented, whether the attorney was-employed by both parties. If he was, he-was incompetent to state what was communicated to him by either of them in the course and business of .his professional .employment. The law protects suchxommunications, and “the seal of .the law once fixed upon them remains .forever, unless removed by the party himself.”

It appears by .another bill of exceptions “that Robinsonis attorney offered himself as a witness, to .prove an agreement -between him and Veeder, that Veeder .was not to .claim the benefit of his mortgage, that .Veeder acknowledged that Harkins only owed him about $1,800, and that in,paying the debts of the .succession Robinson should come in pro rata with him, Veeder, according to,the amount of their claims; to which testimony defendant by his counsel objected,.on the ground that parol testimony could not be admitted to contradict a notarial act of sale ; that it could not be received to annul a mortgage evidenced hy .a notarial act, after twelve months had elapsed from the date of Robinson'.s judgment; and, on the further ground that, if a fraud was attempted to be practiced by Veeder, Robinson became ,a .participator therein, and he cannot, now, an.a court of .justice, avail himself of any benefit resulting from his own turpitude”; which objection the court overruled.

We are of-opinion that the creditor, Robinson, had a right to show the declarations of Veeder, that the whole.mortgage debt had never existed as declared in-the.aet. Robinson was not a party to the act, and the evidence went to show fraud, for which .purpose oral -evidence was cleariy admissible. The weight.to be given to proof of oral acknowledgments, was a matter -which concerned the weight.of the evidence, and not its admissibility.

Whether the facts stated.established the turpitude of the party.offering the testimony, we do not consider it necessary now to determine ; but .upon a tableau of distribution, which is .practically a concurso of creditors, if a party chooses to show that he has combined with the administrator to .injure other creditors, we know of no rule of law that will prevent him .from doing so, nor the creditors from availing themselves of its legal consequences in their favor.

The argument of .counsel has pointed to the fact that the witness was the attorney of record of the party for whom he offered himself, and to his testimony as being that on which the cause turns. In the view .which we have taken of this case, as one in which we are not finally acting, we are not called upon to discharge the disagreeable duty of .weighing this testimony. But we take this occasion to observe, as an imperative act of judicial duty, that although an attorney at law is under our laws a competent witness for his client, yet the position of an attorney thus offering himself as a witneas is one of extreme delicaey to the witness and to the court-; and that it is always desirable, for the harmony of the profession, the independence of the bench, and the public confidence in the administration of justice,, that an attorney should not be a witness, except in extreme cases, when all other means of proof are impossible; and then, as it seems to us, the attorney-should withdraw from-professional participation in the cause. So far as the benchis concerned, it is a duty of the most painful nature to be called upon, as we sometimes have been, to weigh the evidence of a member of the bar.

It is therefore decreed that the judgment of the eourt below- be reversed, and that this cause be remanded to the'court below for further proceedings in the matter of the succession of William, Harldns, upon due publication of notice of the tableau of distribution filed in this cause, and according.to law; the appellee paying the costs of this appeal.


source: Caselaw Access Project

author: Kino,- J.

license: Public Domain

text:
    Grayson, Tutor v. Mayo.
    A1 purchaser at'aprobate'sale will not acquire the property free from mórtgages created by the deceased, where there was an express stipulation, at the, time of the sale, that the adjudication should not discharge the encumbrances.
    Where one or more of several notes secured by mortgage have been extinguished by proscription, the mortgage itself will be extinguishd pro ianto; and the maker of the notes cannot, by subsequent acknowledgments of the debt, made after the sale of the mortgaged-property to a third person,' revive the mortgage so as to affect the property in the hands of ’ the latter, without his express assent.
    The only demand which interrupts prescription is that made by a citation.
    Where the tutor of a minor receives and sues on notes taken at a probate sale for the price-of property inherited by the latter, he cannot question, the authority of the judge to receive such notes. »
    Appeal from the District Court of Catahoula, Farrar', J.

      Garrett, forth© plaintiff. O. Mayo and McGuire, lor the-appellant.
   The judgment of the court was pronounced by

Kino,- J.

The plaintiff, in his capacity of tutor of James P. Bowden, is the holder of three promissory notes, secured by a special mortgage on a slave, adjudicated to McLendon, at the probate sale of the succession of the minor’s ancestor. The notes matured respectively on the 25th days of March, 1839, 1840; and 1841. At the probate sale of McLendon's property, the slave subject to this mortgage was purchased by the defendant, Mayo. The existence of the encumbrance was announced by the auctioneer, and the slave sold subject to the mortgage in favor of the succession of Bowden. The object .of the present action is to enforce this mortgage on the slave in question, in the hands of the defendant. The defendant denies the existence of the mortgage, which he contends was extinguished by the1 probate sale, and further pleads the prescription of five years. A judgment was rendered in the court below in favor of the plaintiff for one of the notes, and recognising the mortgage on the slave, from which the defendant has appealed. The plaintiff asks for an amendment of this judgment, and urges that the prescription in regard to the two notes which first matured was interrupted by the acknowledgments of the administrator of McLendon, of the existence of the debt.

The principle has been well settled, that the'piirchaser of property at a- aale ordered by the Probate court, acquires it free-from the mortgages created by the deceased. That such is the effect of probate sales when there has been no reservation made in regard to encumbrances cannot be questioned, after the repeated decisions in which the principle has been recognised. But the reasons-on which those decisions are founded have no application to sales containing an-express covenant that, the adjudication shall not operate a discharge of the encumbrances-. No law prohibits such a stipulation-, and the purchaser at a sale containing such a condition is bound by the contract. The procés-verbal of the parish judge in the present instance states that, “a mortgage was proclaimed to exist on the slave Lot, in favor of the succession of Elizabeth Bowden, deceased,. for the sum of Jpl,060, and- that said slave was sold subjeetto that mortgage.” The stipulation that the mortgage should remain unimpaired by the-adjudication, and follow the property in the hands of the purchaser, is positive- and distinct. The defendant acquired the slave subject to the encumbrance,which- may be enforced against him.-

The acknowledgments of the administrator of McLendon's succession, that the debt evidenced by the notes sued on was still due, and that payment of it had frequently been demanded, were made after the sale to Mayo, and after two of the notes had been prescribed. The extinction of those notes carried' with it the extinction, pro- tanto, of the mortgage. Whatever may have been the effect of the administrator’s recognition of the debt as far as regards the-succession which he administered, if could not revive the mortgage upon pro^ periy in the hands of tho third possessor, without the express assent of the-latter. Larthet v. Hogan, 1 An. Rep. 330. The amicable demands of payment upon the administrator, had not the effect of arresting the prescription.The only demand by which prescription is interrupted is citation.

The-plaintiff contend's that the parish judge was not authorised to take negotiable notes for the price of property adjudicated at the sale of Bowden's succession-; that the words “or order”, inserted in tliem, are surplusage; and-' that the only description of bonds which he was authorised by the terms of the-sale to receive, were subject to a prescription of ten years only'. The plaintiff having received the notes and made them the foundation of his action against the defendant, has affirmed the acts of the judge, and cannot now question the authority of the latter, nor change the character of his demand.

We consider the notes sued upon-as negotiable- instruments in their form and legal effect, and as such subject to the prescription of five years.

Judgment affirmed.


author: SniDElm, J.

text:
    Union Bank of Louisiana v. King.
    Próbf that the* ttotáry, by whom a note was protested, enquired of the cashier of the bank in which it was payable, and who was the holder of the note as agent, for the residence of the endorser, is not evidence of due diligence, and will not excuse the omission to address a notice of protest, deposited in the post-office, to the domicil or place of business of tbe latter. When the domicil or place of business of an endorser is unknown, the bolder must make reasonable enquiries, and use due diligence, to ascertain them.

      APPE&L from'ihe District Coui-t of Caldwell, Mayo, J.

      Phelps, for the appellants. McGuire and Hay, for the defendant.
   The judgment of the court was pronounced by

SniDElm, J.

The defendant is sued upon two promissory notes of which he is endorser. They are both dated at Catahoula, and are payable' at the office of the bank at Avoyelles. They matured in April, 1837. The notary who protested the notes certifies that he deposited the notices for King in the Avoyelles post-office, addressed to him at Harrisonburg, which was the post-town of the parish of Catahoula. The notary make’s1 no mentionpn his certificates of any efforts to ascertain the residence, or address of the defendant. The cashier of the branch of the Union Bank at Avoyelles testifies, that the notary enquired of him as to the residence of the endorser, but that he does not recollect that he' made enquiry of any one else in his presence; that he’replied to the notaiy that he did not know where King was domiciled, and advised him to direct the notices to Catahoula, as being the place to which, judging from the face of the notes, the notices ought to be directed, when the domicil or nearest post-office could not be ascertained. This is the sole testimony tending to show diligence in ascertaining the endorser’s residence. For the defence it is proved that King once lived in Catahoula, but removed, in the year 1834, to the parish of Caldwell, (formerly Ouachita,) where he has ever since resided; that he had been a merchant at Harrisonburg; that his removal' thence to Ouachita, was a matter of notoriety; that he was a person generally known throughout the country; that his residence in Caldwell was about forty miles from Harrisonburg; that there has been a post-office in Caldwell, distant about a mile from King's residence, since the year 1827; and that King, ever since he came to reside in Caldwell, has applied regularly at that office for his letters and papers, to which place they came addressed.

The endorser is entitled to notice at his domicil, or his place of business, When the right to notice accrues. When such domicil, or place of business, is unknown, it is the duty of the endorser to malte reasonable enquiries, and to use due diligence in ascertaining them. Such notice is only dispensed with when, after such reasonable enquiries and due diligence, the domicil or place of business cannot be ascertained. Due diligence has not been shown in the present case. The only person to whom application was made was the cashier, himself the holder as agent. It would be unreasonable to characterise this as due diligence; nor can we suppose, under the evidence, that further enquiry at the place of protest would have proved unsuccessful. This laches justifies the judgment for the defendant.

We have been asked at least to reverse the final judgment for the defendant,, and grant a non-suit. We have occasionally done so, under circumstances which appeared to call for the exercise of that discretion : but we do not think the present case of that character. This suit was instituted in 1841, and waspending five years before it was finally tried. If evidence existed which would have sustained the plaintiffs’ ease, there was abundaqt time to have obtained it.

Judgment affirmed.


author: Slidell; J.

text:
    Stroud et al. v. Humble, Sheriff, et al.
    Slaintiff, .a- married woman, purchased certain property in her own name, at a prohate salo of the succession of her father, made for the payment of debts and to effect a partition, the price of which was less than her ¿hare in the succession. The sale of the property of the succession was directed to he made for one-tenth cash, and the balance on credit. The act of sale declared that the pvicd had been "in hand paid.” Tlie Succession was solvent. In a'partition subsequently made between the heirs, a note given by the plaintiff for the credit portion of-the price was given up to her/.as a payment pro tanio on her shave in the succession. Held? thattheinterest of plaintiffin the succession of-her father being paraphernal, the property so purchased by her must also he considered paraphernal, being an exception tó tlie general rule that property purchased during marriage, whether in the name of' the hushhnd or wife, belongs to tlie community; and that the law, in this respect, was tha same before the promulgation of the Civil Code of 18S5 that it is at present.
    One whose property has been seized’under execution against another, may recover damages against the sheriff and plaintiff in execution, in solido.

    Appeal from the District’Court of Caldwell,' Farrar, J.

      Purvis and Me- ■ ' Quire, for the plaintiffs. Garrett, for the, appellants.
   The judgment of. the court was pronoun'ced’by'

Slidell; J.

This suit was beford“U's at our last term, and was then remanded for further proceedings. See 1 An. Rep. 310. At the trial on the merits, the title of the plaintiffs as the heirs of their mother, Sally Grady, the deceased wife of Stroud,' to the female slave and her issue, lyhich had been seized up'on'exectttions against William Stroud, their father, was recognised?, ahd judgment’whs also given' for $>150' as damages. From this judgment the sheriff, and his co-defendants, have appealed. It is submitted by the counsel for the defendants that the only issues before the court are 1st. The title of the plaintiffs, as the heirs of Sally Grady, deceased, to the property. 2d-Whether, if they establish this,, they Have shown themselves entitled to the damages awarded by the court.

Upon the first point it is necessary to premise by a brief statement of the factS-It is conceded by the defendants’ counsel that the negro woman Betcy, who has been seized" under execution, belonged to the succession of John Grady, deeeasedj and that the children seized are her issue; that the plaintiffs are the children of ’Sally Grady, and that Sally. Grady in the daughter of John Grady. But' the-contest' as presented by the argument for the defendants is, as to-th© legal consequences of the following facts: After John Grady's death, his testamentary executor and one-of his children presented a petition to the court of Probates in which tlie succession-had been opened, stating that there were considerable debts which the executor had not funds to pay, and praying that the estate of tho deceased be sold for the purpose of paying debts, and making a partition among the co-heirs ; and'that'the terms of sale should be ten.per-cent-cash, and the residue on a credit- It is evident that tlie estate was abundantly solvent, although in want of cash funds to pay debts: for we find that the debts, executor’s commissions, and the costs, only absorbed about one-fourth of the proceeds of sale. The other heirs, and among them Sarah Stroud, the mother of the plaintiffs, accepted service of the petition, waived notice, and concurred in the prayer of the petitioners. A sale was accordingly Orderod by the judge. The decree was: “ Let the prayer of the petitioner be--g»anted,- arid let a-sale be made as prayed for.” The.proces-verbal of the sale, which was conducted by the parish judge himself, sets forth that it was made for the purpose of paying debts, and making a partition among the heirs. The terms announced were for slaves, one-tenth cash, aad:the balance on the 1st January ensuing. It.heclares that the negro Betcy was adjudged to. Sarah Stroud, the last and highest bidder, for the sum of f G50, “ who signs hereto by • consent of her husband, who also signs agreeing to consent to the terms of sale; and John Sims signs as her surety.” On the same day, before the same parish judge, the executor executed .a deed of sale of the slave to Sarah Stroud, by consent of the husband. Both husband and wife- signed this deed. A few months after this, and in the same year, a partition was made among the heir’s, which is of recoi’d with the mortuaria. In this partition Sarah Stroud- and her husband are-stated to be represented by an attorney in fact, and the instrument stales the share of each heir at $1,033 59, and that William Stroud, -who has married Sarah Grady, has received $1,033 59, in the note and mortgage of himself and wife for $585, the note and mortgage of Wood and Broion for $414, and from a coheir $54 in cash.

It is said, and, as we think, coi'rectly, that the lights oí-Sarah Stroud under these facts, must be determined by our system of laws and jurisprudence, as existing before the Code of 1825 took effect. This sale was made in January, 1825. It is not necessaxy, in the view which we have taken of this case, to say whether they are to be exclusively determined by that standard. The settlement by the heirs, in December, 1825, being subsequent to the promulgation of the new Code, the two systems would pei-haps be considered as both .qperating upon the subject matter to a certain extent. But we do not think that, under either system, the rights of Sarah Stroud .would be different.

IVe are of opinion that, as the interest of Sarah Stroud as heir in the succession of her father was clearly paraphernal, the slave purchased under the circumstances at the probate sale was paraphernal also, and did not fall into the community existing between her and William Stroud. The sale was made to hex', in her name. The thing sold was sold not only to pay debts, but to effect a pai’tition of a succession of which she was an heir; the purchase was for little more than half of her share as heir. The counsel for the defendants has laid much stress upon the fact, that there was, by the terms of sale, a cash payment ; and has urged that, there is no px-oof that Sarah Stroud paid the money; and that the law, in the-absence of such proof, 'will presume it was;]xaid by the husband, and consequently, in legal contemplation, by the community. But he has ovcilooked the fact that the deed from the exeeutox1, executed on-the same day as the px-obate sale,, asserts that the price .was in hand paid to him. by Sarah Stroud. The whole current of axxthoi'ity, both under the. existing Code and the system of laws wliich..preceded it, sanctioned the opinion that the title, vested in Sarah Stroud by these proceedings, was -.pax-aphernal. In Savenat v. Le Breton, 1 La. 520, the case was weaker than this, for-the conveyance, on its face, was to the husband,-who, however, acknowledged.in the act, that he received it as a part of the plaintiff’s paraphernal estate. Proof was .admitted, apparently in .part ox-al, that the wife’s sharein the succession of her parents had been deposited in money in the hands of an aunt, and that-the aunt conveyed the pi’operty to the husband in dischax-ge of this debt. The case was stated as being decided under the Spanish laws ; but Mathews, Justice, in delivering the opinion, intimates that the doctrine of matrimonial rights, as.es'lablished by our Codes, is more favorable to the wife. In Newsom v. Adams, 3 La. 231, it was considered that on this subject there was no conflict between our former and present systems. The cases under our present Code are numerous and conclusive, that such a purchase stamps the property as paraphernal. The leading cases are Dominguez v. Lee, 17 La. 301. Terrell v. Cutrer, 1 Rob. 368. See also Maussard v. Her Husband, 11 Rob. 446. Rousse v. Wheeler and wife, 4 Rob. 118. It is-true that the Code of 1808 harmonised with the Spanish law, and with the Code of 1825, in the general principle that property acquired by-purchase-during marriage, whether in the name of the husband or of the wife, belongs to the community. See 11 Rob. 529. J3ut we are not aware of, nor has the counsel'cited, any article of-the .Code of 1808, nor any authority, which establishes that such an acquisition, in the name of the wife, would not fall under a fair and reasonable exception to the general rule.

We do not consider ¡the subsequent settlement made by theheirs as affecting •Sarah,Stroud’s title. The title of the slave was in her ; its price was less than ¡her share ; the act of partition, .and the restoration of her note to her was a •settlement between the heirs, and did not overthrow the paraphernal acquisi-tion. Neither the husband-nor wife so .considered it, at the time; and what has’been done twenty years.ago, in good faith, and in the legal and just exer•cise of the wife’s separate rights as an heir of her father, cannot now be disturbed by the creditors of the husband, and to the detriment of her children.

Upon the question of the allowance of damages, we have been asked by the .appellees to increase them, and by the appellants to -reduce them. An examination of the ¡testimony ¡has not satisfied us that we .-ought to disturb the finding ¡of the district judge. Judgment affirmed.


author: Seidell, J.

text:
    Beall v. Allen.
    ■A ¡plea in compensation ¡which states that,defendant had paid as surety for ¡plaintiff’s .wife an obligation, against .which plaintiff had promised to hold him harmless, on which ■obligation judgment had been obtained against defendant, .-stating the amount-thus paid, 'but not describing the obligation, its date,-the-oreditor, theitime of payment, nor-the title of ¡the suit in which the judgment was obtained, is-too vague. No evidence will be admissi■ble-under it.
    APPEAL from the District Court of Caddo, Taylor, I.

      Terrell,-tor the •plaintiff. '.Gilbert-and Landrum, .for the appellant.
   'The judgment of ¡the court was pronounced by

Seidell, J.

The plaintiff alleges that he entrusted to the defendant-a quan■tityiof cotton to be ginned and-baled for-the plaintiff, for which service payment was to be made; and that the,defendant has sold the same,-.or converted it to his.own use. -He asks for judgment fonthe return of the cotton, or its -value. The defendant,answered by,a general denial, and a plea in compensation. At •the trial of theicause.the defendant offered a witness to ¡provehis claim,in com¡pensation ; but this testimony-was rejected.

On examining the answer and plea in compensation, ¡we find it defective in ¡that certainty-which is required in sucha-plea-. The plea is that the defendant .has,-paid, as surety ¡for the,plaintiff’s wife, a certain obligation, against which ,tho plaintiff promised and was bound to.hold him,harmless,and upon which-ob'iigation a judgment had been obtained against the defendant. Tbo plea states the amount thus paid ; but does not describe the obligation, its date, the creditor, the time of payment, nor the title of tho suit in which the judgment was obtained. The plea was too vague and indefinite, and the defendant had no right to offer evidence under it. See White v. Moreno, 17 La. 373. Smith v. Scott, 3 Rob. 260.

The claim of the plaintiff was proved. Judgment .ciflirmed.


author: Kins, J.

text:
    Sandridge, Agent &c. v. Jones et al.
    "Where, through-the negligence of a sheriff, an opportunity is affonled to a debtor of removing into another State property seized under attachment, and plaintiff thereby loses his recourse against it, judgment may be recovered against the sheriff, and his -sureties, in solido, for its value.
    PPEAL from the District Court of Caddo, Olcoli, J. This was-an action against a sheriff and his sureties, with a prayer for judgment against them insólido, for the amount of damages alleged to have been sustained 'by plaintiff through the neglect of the sheriff. The plaintiff appealed ‘from a-verdict Naud judgment against him.

      Crain, for the appellant. McGuife and Ray, for the defendants.
   The judgment of the court was pronounced by

Kins, J.

The defendant, Thomas B. Jones, is sought in this action to be rendered liable for the value of several slaves, which were attached at the suit of the plaintiff, under a writ executed by one of the defendants Janeé’ deputies, and which were, as it is alleged, suffered to escape by the gross neglect of the-officer. The cause was tried by a jury in the court below, whose verdict was for the defendants, and the plaintiff-has appealed. "When the writ was placed in the hands of the officer he was notified by the plaintiffs’ attorney, that despatch and the utmost caution were necessary in executing it. That the defendant in attachmenthad declared his intention never to pay the debt for which he was pursued in that action; that the institution of the suit was becoming a matter of notoriety; and that prudence and diligence would be necessary. The plaintiff offered to bear any expense that the-extraordinary diligence, which he asked, might require.

The officer to whom the writ was delivered gave it to another deputy, who retained it for a day, and then returned it to Watson, the officer from whom he had received it. Watson then undertook the execution of the writ himself, repaired to-the neighborhood in which the slaves were, which he reached about noon. The weather being inclement, he waited until about four o’clock in the evening for the slaves to return from their -work, before making his levy; and, after having effected his seizure, the slaves were not confined nor secured in any manner, but were suffered to retire to their cabins for the night, with no guard placed over them. The slaves .when seized were at a point distant about six or eight miles from the boundary line between Texas and Louisiana, and the defendant in attachment resided in Texas. On the morning following the seizure, the slaves were missing. The sheriff returned on the writ that the slaves were ¡attached, that.they were removed to Texas, and that he had been unable to r,e-c°ver possession of them. The officer thus appears to have boon guilty of laches at every step made in the execution of the writ. He was notified of the importance of promptness, notwithstanding which the writ was suffered lore-,main in the hands of .a deputy for a day without.an. effort to execute it. He .was warned of the probability that the defendant in .attachment would make an effort to remove the slaves; and yet, after makingthe seizure, the slaves were permitted to.remain.at large, with no.guard placed.over them, or precautions used to.prevent-their escape, notwithstanding their immediate proximity to the ■ boundary line of the State. His negligence has rendered him liable to the ¡plaintiff for the amount-of tliodoss sustained by reason of his laches.

The witnesses differ in relation to the value of the slaves.attached. We cannot, under the evidence, place.upon-them a higher estimate than $1,200. The title to an interest of one half in them only, is shown to have been in the defendant in attachment, which'fixes the liability of the sheriff at $600. The plaintiff .has shown that he is a creditor of the defendant in attachment for a sum much larger than the value of the entire property seized.

It is therefore ordered that the verdict of the jury be set aside, and the judgment of the District.Court reversed. It is-further decreed that the plaintiff recover of the defendants Thomas B. Jones, W. W. Harper, Vinkler II. Jones, and John S. Gilbert, in solido, the sum. of $600 ; and that said defendants pay the costs of both courts.


author: Kino, J.

text:
    Poirrier v. White.
    The aot of Congress of 23 January, 1832, relative to.the pre-emption rights of settlers on public lauds, only authorised the transfer of certificates of purchase, or final receipts. The prohibition to assign or transfer a mere pro-emplion right, before.a patent had been issued, imposed by the act of 2D May, 1830, was not repealed or affected by the stat. of 1832; any sale 1 or assignment made in violation of it is null; -and a title to the land, subsequently acquired by purchase from the government by the party entitled to the pre-emption, will enure to his benefit, and not to that of-the purchaser of the pre-emption right.
    Appeal from the District Court of Bossier, Taylor, J.

      Lawson, for the appellant. Gilbert and Landrum, for the defendant. .Crain, for the intervenors.
   The judgment of the court was pronounced by

Kino, J.

In July, 1S34, the plaintiff sold to Robinsonhis right of pre-emption to a tract of-land, stated in the-act of sale to have arisen under the statute of 1839. Robinson sold the land, with an adjoining tract acquired-from Prevost, to the defendant White, who gave his three .promissory notes .for the price, and the land remained specially mortgaged in favor of the vendor to secure their payment. Two of those notes were transferred to Lambeth & Thompson, by Robinson, with a subrogation to all the rights of mortgage of the latter on the -land hypothecated. In 1840, Poirrier purchased from-the United States the quarter section of land, the right of pre-emption to which he had previously sold to Robinson, proving up his claim under .the act of 1832. He has now instituted .this action for the recovery of the land in question, alleging that his sale to Robinson, was in violation of an express prohibition of the law of Congress, and for that reason void. He .also claims rents.and profits. White, the defendant, .called his vendor, Robinson, in warranty, and prayed that, in the event of eviction, he be allowed compensation for his improvements. Lambeth, 8f Thompson, the holders of two of the mortgage notes, have intervened in the suit, and pray that the title of White be maintained, but that, in the event of an eviction of the defendant, the plaintiff be decreed to pay them the price which he received from Robinson for the land. There was a judgment rendered in favor of the defendant in the court below, quieting him--in his title, from which the plaintiff has appealed.

The act of Congress'of May 29-, 1830, granting pre-emption rights to settlers on public lands provides thait “ all assignments and transfers of the'right of preemption given by this act, prior to the issuance of patents, shall be null <iud> void.” The act of 1832, supplementary to the act of 1830, authorised persons who had purchased under the act of 1830, to “assign and transfer their certificates of purchase or final receipts,” and patents to issue in the name of the assignees. The act of the 19th June, 1834, revived the act of 1830, and continued it in force for two-years. United States Statutes at large, vol. 4, pp. 420, 496, 698.

It is contended that the act of 1832 authorised the assignment of pre-emption' rights, such as were transferred by the plaintiff; that the act of 1834, reviving, that of 1830, revived with it the supplementary act of 1832; and that the sale from the plaintiff, having been made subsequently to the passage of the act of’ 1834, was not forbidden by law. It is not necessary to determine whether the effect of the act of 1834 was to revive the act of 1832, as well as the act of 1830. The act of 1832- only permitted purchasers to assign their certificates of purchase or- final receipts. The prohibition from selling.the mere pre-emption right was-not repealed nor affected by the act of 1832, but remained in full vigor. That, prohibition is express, and the absolute nullity is declared of any sale or assignment-made in violation of it. The entry made by plaintiff in 1840, vested in-him the title to the land, and authorises a recovery.

The warrantor not having been cited, and having made no appearance in the cause, no judgment can be rendered against him and in favor of his vendee.

Lambeth Thompson, the intervenors, claim, in virtue of their'subrogation to the rights of Robinson, that, in the event of. eviction, the plaintiff pay them the price which he received from Robinson. These parties were only subro-gated by Robinson to all his rights and actions in regard to the notes transferred to them. There was no subrogation, or transfer to them of Robinson’s recourse in warranty against his vendor, and Robinson makes no claim in this suit against his vendor. Justice between the parties requires that the plaintiff should be compelled to reimburse the price which he received from Robinson; and we regret that the state of the pleadings does not authorise us to render such a judgment.

The rents of the land have been proved to be worth §196, and the improvements made by the defendant to be worth §160. For the difference, which is-§36, the plaintiff is entitled to a judgment.

It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that the the plaintiff recover of the defendant the tract of land designated' as the north-west quarter of section one, of township number sixteen, of range qumber thirteen, containg 112 16-100 acres; and further that he recover of the dofendant the sum of §36. It is further ordered that the defendant pay the costs of both courts.


text:
    Prevost v. White.
    Appeal from the District Court of Bossier, Taylor, J.
   This5 ease only differed from that of Poirrier v. White, in the fact of the pre-emption right to the land in controversy having arisen under the act of' Congress of 19 June, 1834. The parties, with the exception1 of the plaintiff, are the same in the two eases, and- they were represented by the same counsel.


author: Slidell, J.

text:
    Bloomfield v. Jones et al.
    Under ordinary circumstances a sheriff will he considered- as having exhibited due diligence,by serving a citation in time to enable the plaintiff to take a default at the earliest period-' after the opening of the court at the term-next ensuing. To render a sheriff liable for damages resulting from the failure to serve a citation>sooner — as for the amount of the debt, when the citation was not served in time to interrupt prescription — plaintiff must show that the officer was notified of the necessity of earlier service to prevent the proscription off the claim.
    PPEAL from the District Court of Caddo, Campbell, J.

      Lawson, for the-appellant. Crain, for the defendants.
   The’judgment of the court waffpronounced by

Slidell, J.

The plaintiff alleges that, in March, 1844, she was the owner of a/ joint and several promissory note, made in her favor by H. G. Williams and Thomas Sutton, due April 5, 1839; that, in the-year 1844, on the 23d of March, the plain-tiff having instituted suit against Williams, the citation and copy' of petition for the defendant were placed in the hands of Jones, then sheriff of the parish of Caddo, who neglected to serve them until the-16th of April; 1844; that, by reason of prescription, there was judgment for defendant in said suit; that, in September, 1844, she brought suit against Sutton, in the District Court for Bossier parish, who-pleaded prescription, and had judgment in- his favor; that if the citation in the case against Williams had been served with due diligence, prescription would have been interrupted as to Williams, and by legal consequence as to his eo-debtor in solido ; that by the wilful neglect and nonfeasance of the sheriff the debt- has been lost, and the officer has made himself,, and Ills official sureties, liable in damages to the amount of the'debt and costs.The defendants pleaded- a general denial, averring also due diligence in the service of the citation, &c. The cause was tried by a jury, who found a verdict for the defendants, in conformity to which a judgment was- entered; and, a new-trial having been refused, the plaintiff has appealed.

The record exhibits a bill of exceptions with regard to the legal effect of the exemplifications of the records in the suits against the makers of the note, as evidence in this cause; but we have not considered it necessary for the decision of this cause to examine the questions presented by the bill.

In examining the cause on the merits, we find a state of evidence which does not permit us to declare the verdict of the jury erroneous. Under ordinary eircümstances the sheriff would be considered as having exhibited due diligence, by serving a citation in time to enable the plaintiff to take a default at the earliest period after the opening of the court at its next ensuing term. This was done in the present case. But to take this case out of the general rule of diligence, the plaintiff produced a witne'ss who testified that, when the citation was delivered to the sheriff’s deputy, he informed the deputy that it was important that the citation should be served, or prescription would run; stating, however, on his cross-examination, thathe did not recollect the precise words used. But, on the other hand, the deputy, who had been made a competent witness by the release executed in his favor by the sheriff, declared that he had no recollection whatever of the clerk having told him of the necessity of serving it speedily, or of his saying any thing about it; that he thought, inasmuch as it was unusual to give such an admonition, that he would have remembered it, had the clerk given it. In weighing this conflicting evidence, and the other facts connected with the question of diligence, the jury had better means to form a correct opinion than we have.

There is a good deal of testimony going to show that the sheriff was much pressed at the time with official business, particularly the pursuit of stolen property. But we have not permitted this to influence our opinion in affirming the' verdict. It was his duty to increase the number of his deputies in proportion to the accumulation of his official labors.

Judgment aJJirmecL


text:
    Hueston v. Jones.
    Wliei'd in an action by the' holder of a note against the maker, there is no allegation nor probf, that certain obligations of the payee, pleaded in compensation by the maker, were hold by him before the transfer of the note to the plaintiff, the latter will be entitled to recover., though the note was transferred to him after maturity.
    A printed book, purporting to contain the statutes of another State, and to have been printed by the authority of its legislature, not authenticated according to the act of Congress of 26' May, 1760, is inadmissible to prove a statute of that State.
    Appeal from the District Court of Claiborne, Taylor, J.

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

Slidell, J.

This is an action on a promissory note, made by the defendant to the order of Crownover, payable one day after date, and endorsed by the payee to the plaintiff, by an endorsement bearing date two years after maturity. The defendant answered by a general denial. He also pleaded that the plaintiff is not the owner of the note, but that it was held by Abraham Hueston, with whom the plaintiff had colluded for the purpose of avoiding the defendant’s defence. He annexes certain joint and several obligations of one Beal and Abraham Hueston to his answer, which he pleads in compensation. He also propounded interrogatories to the plaintiff. The answers to these interrogatories negative the charge of collusion, assert the ownership of the note to be in the plaintiff by a transfer for value, and the plaintiff’s ignorance of any defence existing against the note at the timo of the transfer.

The evidence adduced by the defendant, and that also which he proposed to oiler and which the court rejected, were insufficient to defeat the plaintiff’s claim. There was no allegation in the answer, nor any thing in the evidence offered, nor in that proposed to be offered, to show that the obligations pleaded in compensation were held by the defendant previous to the transfer of Jones’ note to the plaintiff.

The court properly refused to receive in evidence a printed book, purporting to contain the statutes of Mississippi, and to be printed by the authority of the legislature of that State, to prove the laws of that State. See the case of Phillips v. Murphy, ante p. 654. Judgment affirmed.


author: SiiiDEM,, J.

text:
    Kenner v. Peck.
    Where a plea in compensation does does not specify either the amount or the nature of the offset, no evidence will be admissible under it. C. P. 367.
    Time will not be allowed to a party to obtain the answers of his opponent to interrogatories, when, even iftakenfor confessed, the facts they might establish would be impertiuent to the issue. C. P. 350.
    Interest will be allowed from maturity on a note payable at the counting-house of the payee, bearinginterest '• after due until paid,” thoughthe protest, made several years afterwards,, was the only evidence of a formal presentment at the place of payment, when the tenor of a letter written by the maker to the plaintiff, recognising the debt and promissing payment, justifies the inference that the defendant had provided no funds at the place of payment.
    Appeal from the District Court of Catahoula, Mayo, J.

      O. Mayo, for the plaintiff,
    cited 2 Mart. N. S. 84. 17 La. 371. 3 Rob. 258.

      Purvis, for the defendant,
    relied on C. P. 347 to 350. 7 Mart. N. S. 269. Bradford v. Cooper, 1 An. R. 325. 12 Rob. 243.
   The judgment of the court was-pronounced by

SiiiDEM,, J.

The plaintiff sues as holder of a promissory note made by the-defendant to the order of Taylorr, Gardiner Sf Co., and by them endorsed, payable at their counting-house in New Orleans. There was judgment for thff plaintiff, and the defendant has appealed. •

The first point urged by the defendant is, that the court below impx-operly refused him time to obtain the answers of the plaintiff to interrogatoiies propounded. The purport of these intei’rogatories was, to ascertain fi'om the plaintiff whether Taylor, Gardiner & Co. were not the real owners of the note,, with a view, as the defendant contends, of enabling him to establish a compensation, or set-off, of claims due to him by Taylor, Gardiner & Co. But the plea of compensation was framed in a manner so loose and defective, giving no specification whatever of the nature of the offsets, that no evidence would have been admissible under it, and the interrogatories, if taken as confessed, would have been impertinent to the issue really made by the pleadings, which amounted in legal effect to nothing mox’e than the general issue, and a question of prescription. There was therefore no error in the ruling of the court. See C. P. 350, 367. White v. Moreno, 17 La. 371.

The plea of prescription was properly disregarded. Five years had not elapsed from the maturity of the note to the date of the service of citation.

The appollant contends that interest should not have been allowed from the maturity of the note, but only from the day of protest. The note stipulates interest at ten per centum per annum after due, until paid. It is made payable at the counting-house of Taylor, Gardiner & Co., and was protested some years after maturity. The protest is the only evidence offered of a formal presentment at the stipulated place of payment. But a letter of the defendant addressed to the plaintiff is in evidence, which recognises the indebtedness, in reply to a letter of the plaintiff, and promises payment. The tenor of this letter justifies the inference that the defendant had provided no funds at the place of payment, and, coupled with the stipulation for interest after due till paid, justified the allowance of interest from maturity.

Judgment affirmed.


text:
    Prothro v. The Minden Seminary.
    Parol evidence will be received to prove a resolution of a board of directors authorising tbe president to execute a mortgage in the name of the corporation, when the witness, who was secretary of the board, states that the resolution was written by him as secretary on a slip of paper, and never transcribed on the minute booh, that the paper was lost, and that an unsuccessful search had been made for it.
    Appeal from the District Court of Claiborne, Taylor, J.

      Lawson, for the appellant. Vaughn, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

This action is upon two notes signed by Edward R. Olcott, president of the board of trustees of the Minden Seminary, and a mortgage of lands, executed by said president on behalf of said company, to secure their payment. The corporation answered by a general denial, and also pleaded specially that the corporation never executed the obligations, nor delegated to any one authority to bind it by, note, or mortgage. There was a judgment of non-suit, and the plaintiff has appealed.

This corporation was created by an act of the legislature, passed on the 12th March, 1838. The title of the act is, “ An act to incorporate a Seminary in the town of Minden.” It is constituted in the usual terms a body politic, with perpetual succession, the capacity to sue and be sued, purchase, sell, hypothecate, and pledge all kinds of moveable and immovable property, See., and dispose of the same as to them may seem meet. Power is conferred to pass, and put into execution, all by-laws for the government of the corporation, and the administration of its affairs; and the corporaton is “invested with all the rights and privileges which by law are granted to bodies politic.” Provision is made for a board of directors, any four of whom shall constitute a quorum. The act declares that the said directors shall act in all matters concerning the corporation, and they are clothed with all the powers necessary for the establishment, maintenance, regulation, and administration of a seminary for the town of Minden. A provision in the act contemplates the appointment of a president of the board, who is authorised to receive from the treasurer of the State a sum of money annually appropriated, to be employed in fulfilment of the object of the corporation, under the surveillance and control of the board of directors.

At the trial of- the cause, the plaintiff offered oral evidence, to wit, the testimony of the secretary of the corporation, to prove a resolution of the board of directors authorising Olcott, the president of the board, to execute the mortgage and notes. The secretary also deposed that the resolution was taken on a loose piece of paper by him, as secretary; that said paper was lost, and never was transcribed on the book of minutes; and that an unsuccessful search has been made for it; to this testimony, which was taken down and comes before us as proof of the statement of facts, objection was made and noted, though it does not appear whether the court sustained the objection or not. The objection was that, it was not the best evidence. This is an irregular mode of presenting an exception ; but we will proceed to consider it. Under the circumstances, we-think the evidence was admissible. The writing was lost, and an unsuccessful search had been made for it. To refuse the plaintiff, under such .circumstances, the benefit of the oral proof of the lost writing would not only violate the familiar rule of evidence, but would be particularly onerous in this case, for it would in reality be permitting a corporation to.take advantage of the carelessness of it,? own officers and servants,

Considering the resolution as properly in evidence, it remains to examine its legal effect. The corporation, as we have seen, had a special grant of capacity to hypothecate immovable property, and dispose of its effects “ as to them may seem meet.” It was also clothed with all the rights and privileges which by the general law are granted to bodies corporate. Its board of directors was charged with the administration of its affairs, and a president is contemplated in the Statute as its active officer. This .officer, acting under a resolution of the board of directors, has executed this mortgage and the notes; and in the entire absence of any evidence that they have abused their trust,or have not received the equivalent as acknowledged in the notes and mortgage, we must presume that-the debt was contracted in the honest discharge of their duties, and that the corporation is bound.

It is therefore decreed that the judgment of the court below be reversed, and that there be judgment in favor of the plaintiff against the said defendants, the Seminary of the Town of Minden, for the sum of 3>1,775, with interest thereon at the rate of ten per centum per annum, from the 25th day of January, 1841, until paid ; with mortgage therefor on the property described in the act of mortgage, executed by the said defendant on the 25th January, 1841, before George W. Peets, parish judge, whereof a copy is on file in this cause, find costs ii) both courts.


author: SiiDEli,, J.

text:
    Lee et al. v. Sewall et al.
    Where a creditor of a partnership, for the payment of whose debts a third person bad bound himself as surety, takes from the partners a note payable at a future day in settlement of a debt due him by open account, the prolongation of the term of payment will discharge the surety. C. C. 3032.
    Appeal fiom the District Court of Caddo, Taylor, J.

      Crain, for the plaintiffs. Lawson, for the appellant.
   The judgment of- the court was pyopoiinced by

SiiDEli,, J.

The petitioners allege that they are the holders of a note in their favor, made by Charles A. Sewall & Co. in liquidation, dated in May, 1841, and payable at ninety days after date, with interest at ten per cent from the 10th June then next, given for a debt due by Seioall 8f Co. to the petitioners; that, on the 12th January, 1841, the partners of that firm, Sewall and Williamson, dissolved their partnership, and that, by a written instrument dated on that day, Sewall, as principal, and Gilmer, as surety, bound themselves to pay all the debts and liabilities of the firm, and to save Williamson harmless from them; the consideration of which obligation was that Williamson had transferred to Sewall all his interest in the partnership assets. Judgment is accordingly prayed for against the defendants as principal and surety, for the amount of the note and interest, after allowing certain credits. Gilmer answered by a general denial, and also pleaded specially that, if he ever was liable as surety, he had been discharged by the plaintiffs’ having given time to the principal. He also pleaded novation since the contract of suretyship was entered into by him. There was judgment for the plaintiffs for the amount of the note and interest, after allow* anee of certain payments, and the defendant Gilmer has appealed.'

It appears that the note, which forms, together with the obligation of suretyship, the basis of this action, was given by Sewall in settlement of ah open account due by Sewall & Co., before the dissolution, to the plaintiffs. The note bears date after the dissolution and the defendants obligation, and there is no testimony to show, that the other partner, Williamson, ever conferred any authority upon Sewall to bind the firm by note after the dissolution, nor any approval of the new arrangement, either by Williamson or by Gilmer.

The question is thus presented, whether the taking of the note, payable ata future day, with ten per cent interest for an indebtedness theretofore existing in the form of an open account, has discharged Gilmer. The plaintiffs contend that the obligation which Gilmer executed, contains a stipulation pour autrui, to the benefit of which they are entitled, under articles 1884 of the Civil Code, and 35 of the Code of Practice. If this be conceded, they then stand as though they were parties to that agreement; in other words, as though, on the 12th January, 1841, Sewall, as principal, and Gilmer, as surety, had promissed the plaintiffs to pay them the balance of the open account due by Sewall & Co. But the surety is discharged when, by the creditor, the subrogation to his rights, mortgages, and privileges, can no longer be operated in favor of the surety.” Civil Code, 3030 ; see also 3032. Here time was given by the plaintiffs to Sewall, without the consent of Gilmer; and, even if the obligation executed by Gilmer was one of which the plaintiffs could have availed themselves, they have discharged him by their own act. See the case of Mouton v. Noble, 1 Ann. Rep. p. 192.

It is therefore decreed that the judgment rendered against the said David Gilmer be reversed, and that there be judgment in his favor, with costs in both .courts.


text:
    Tutorship of Bates.
    A family meeting must be composed of five relations, or, in default of relations, of five friends of the minor’. C. C. 305. The under-tutor cannot be a member of a family meeting, though he must be present for the purpose of advising. C. C. 302.

      Where a tutrix is deprived of the tutorship by marrying a second time without having convened a family meeting to decide whether she shall remain tutrix, the appointment of under-tutor does not cease with that of the tutrix. Itis, under such circumstances, the duty of the under-tutor to provoke the appointment of a tutor. C. C. 303.
    Appeal from the Court of Probates of Bossier, Scott, J.
    Latoso», for the appellants. Evans, contrh.
   Ihe judgment of the court was pronounc-1 ed by

Slidell, J.

There is a motion to dismiss this appeal. It was made returnable to Alexandria by an order of the District Court for the parish of Bossier, in November, 1846. Subsequently the case fell under the operation of the act of 24th April, 1847, which directed that appeals from the parish of Bossier, made returnable to the Supreme Court at Alexandria and not filed in the court at that place before the establishment of a term of the Supreme Court at Monroe, should be returned, filed, and tried, in the Supreme Court at Monroe, in the same manner as other cases, &c. Under this legislation we consider it our duty to hear this cause at this place. The appellee objects that he has had no notice whatever of this appeal, nor of any of the proceedings in the cause in the District Court after a former dismissal by this court. It appears by the i;e-cord that the order of November, 1846, was made in the presence of the appellee, “who took cognisance of said appeal.” The appellee is presumed to know the provisions of the act of 1847, giving this court authority to hear the cause at this place.

The appellant opposed the homologation of the proceedings of the family meeting which advised the appointment of E. D. McMullen as tutrix, on various grounds, one of which only is it necessary to notice.

A family meeting must be composed of five relations, or, in default of relations, friends of the minor. C. C. 305. Five persons are necessary to constitute the meeting. The under-tutor cannot be a member of the family meeting, but he must be present for the purpose of advising — il devray étre appellé, ety aura voix consultative. C. C. 302. In this case Thomas Sutton acted both as a member of the family meeting and as under-tutor, and signs the proceedings in both capacities. The family meeting must be considered as having been composed of four persons only, and this irregularity vitiates the proceedings.

' It is said that when the former tutrix became deprived of the tutorship by her marriage, the appointment of the under-tutor fell with it. This is incorrect. When that event occurred, the law made it expressly the duty of the under-tutor to provoke the appointment of a tutor. C. C. 303.

It is therefore decreed that the judgment of the court below be reversed ; that the opposition of the said Richard E. Bates be sustained; that the application for the homologation of the proceedings of the family meeting be dismissed; and that the proceedings of said meeting and the order therefor, be set aside ; the appellee paying the costs of this appeal.


author: Etjstis, C. J.

text:
    Trent v. Calderwood.
    A surety on a twelve-months’ bond is not subrogated, on paying it, to an equivalent portion of the judgment under which the property for which the bond was given was adjudicated, but only to the rights of the creditor of the bond itself. Per Cwiam .- The debt created by the judgment is not the same as that represented by the bond. The surety who pays the bond has none of the rights of mortgage which the judgment itself imports.

      Appeal from the District Court of Ouachita, Selfo/, J.

      McGwire and Ray, for the appellant. Copley, surety on the twelve-months’ bond, pro se. Stillman and Purvis, on the same side.
   The judgment of the court was pronounced by

Etjstis, C. J.

The only question in this case, is whether a surety on a twelve-months’ bond is subrogated, on paying it, to the equivalent portion of the judgment under which the property for which the bond was given was adjudicated, or only to the rights of the creditor of the bond itself.

The debt created by the judgment is not the same represented by the bond. The surety who pays the bond is subrogated to all the rights appertaining to it, but can have no rights of mortgage, which the judgment itself imports. We understand this to have been held in the case of Coons, Curator, v. Graham, Curator, 12 Rob. 209. Such is our view of the law in relation to payment with subrogation.

The opinion of the court prepared in the case of the Succession of Harkins, ante p. 923, supersedes the necessity of any remarks concerning the attorney in this case being a witness.

The judgment appealed from is reversed, and the petition of Copley dismissed, with costs of the opposition in both courts.


text:
    Prewitt v. Carmichael.
    An attachment will not lie in an action for damages ex delicto.

    Appeal from the District Court of Morehouse, Copley, J.

      Boatner, for
    the appellant. McGuire and Ray, for the defendant,
    cited C. P. 242, 243 ; Irish v. Wright, 12 Rob. 568, 575.
   The judgment of the court was pronounced by

Etjstis, C. J.

This is an appeal from a judgment dissolving an attachment, on the ground that an attachment will not lie in an action for damages for a tort. The plaintiff was shot, and maimed in the knee, by the defendant, and his action is brought for expenses incurred for medical and surgical services, and loss of time during his confinement. The case is accompanied with every species of aggravation, and the damage sustained is definitely stated, sworn to, and proved.

We have sought with much care for a precedent in which the plaintiff’s action could be sustained, but without success. The practice, and the understanding of the profession generally, we believe, has been uniform against the validity of attachments in cases of tort. The subject has been recently thoroughly examined, and, under a full review of our legislation in reference to attachments, the evident intimation of the court was against the validity of attachments in ac'tions for damages in cases of tort. See the case of Irish v. Wright, 12 Rob. 570.

Judgment ajirmed.


author: Eüstis, C. J.

text:
    Hobdy v. Jones.
    la an action for damages for slander in asserting that plaintiff was living in concubinage with a person represented tobe bis wife, proof by plaintiff of co-habitation and reputation as husband and wife is sufficient evidence of a marriage.
    Appeal from the District Court of Claiborne, Taylor, J.

      Oilberl ahd Landrum, for the plaintiff. Evans and Lawson, for the appellant,
    contended that plaintiff cannot recover without proving an actual marriage, co-habitation and reputation being insufficient, citing 4 Phillips on Ev. p. 206. Morns v. Miller, 4 Bur. 2057. But v. Barlow, 1 Doug. 170.
   The judgment of the court was pronounced by

Eüstis, C. J.

This is an action of damages for slander. The slander pose of destroying his character and defeating his election. The defendant in liis answer alleged that, he did not utter the words as laid in the petition as facts within his own knowledge, but stated them, in the canvass for the legislature, as matters that had been currently reported in the parish for many years; that, in so stating the existence of such reports, he stated the truth; that he was not influenced by malice, but acted from a sense of duty as a good citizen, in endeavoring to procure the election of men of unspotted reputation to represent the parish in the legislature. There was a verdict for the plaintiff for $2,000. There was an unsuccessful application for a new trial, and the defendant has appealed. charged is the declaration of the defendant, in conversation with a third person, that the petitioner was never married to his wife, and was living at his present domicil in open concubinage and criminal connection with her, together with other declarations of an aggravated nature. The petitioner alleges the falsity of those charges, his good reputation and that of his wife, and the injury sustained by him by reason of the slanderous report circulated by the defendant. It is alleged, among other injurious consequences of the slander, that it was promulgated on the eve of an election for the legislature, the plaintiff being then a candidate for the place of representative from his parish,'and that several citizens, to whom his character was unknown, refused to support him inconsequence of hearing the report; that the slander was uttered maliciously ,• and for the pur-

On the merits, We consider it our duty to affirm the verdict and judgment. It was proved by several witnesses that, for may years, the plaintiff has lived with his wife as her husband; that they were generally reputed as married persons; that they had been visited as such by the ladies of their neighborhood, and had borne a good reputation. It was proved by some witnesses for the defendant, that rumors had existed that the parties were not married ; these rumors do not appear to be general, and the evidence appears to justify their origin as traceable to an individual who was at enmity with the plaintiff, and who is characterised as a vindictive man, and disposed to indulge in the abuse of those whom he did not like. The rumors do not appear to have received much credence. It was proved that the plaintiff had been affected in the canvass by the defendant’s attack upon his character.

It is proper to notice a bill of exceptions taken by the defendant;

“ The judge charged the jury that, the circumstance of the plaintiff and his Wife living together as man and wife was prima facie evidence of a marriage betvveen them; to which charge of the judge the defendant by his counsel excepted, and requested the judge to charge the jury that, in an action of slander brought by a plaintiff to recover damages from defendant for having slandered-him,.by saying that he and his Wife were living together in a state of concubinage and adultery, the law would tíot presume a marriage between plaintiff and his wife from co-habitation, but it would be incumbent on plaintiff to prove an actual marriage; which Charge the judge refused to give to the jury; to which opinion of the Court refusing said charge, the defendant excepted.”

It is not necessary to decide on the Correctness of the charge of the judge on the point stated, nor of his refusal Jo give the charge asked by the counsel for the defendant, for the law in relation to the particular point on which the decision of the court was had covers but an inconsiderable portion of the case. We will state, however, our opinion of the law on the evidence before' the jury.

It was not incumbent on the plaintiff, under the evidence before the jury, to prove an actual marriage. The very authority quoted by the counsel for the defendant from Douglas’ Reports, is Conclusive. In an action for a criminal conversation with the plaintiff’s wife, Lord Mansfield expressly states that it is the only civil ease in which it was necessary to prove an actual marriage; in other cases, Co-habitation and reputation are equally sufficient.

The possession of the conjugal condition in the present case was sufficient evidence of the marriage. By our laws it would be sufficient to establish the paternity of the issue, and was a question of fact for the jury to determine.

To enable them to come to this conclusion, evidence was properly admitted of the parties living together and treating each other as man and wife; of their being received in society as such; of their being visited by the families of respectable citizens of the neighborhood; and of their demeaning themselves in public and elsewhere, as man and wife, and being so considered in the community in which they had for years resided as members of society,in the enjoyment of their respective conjugal rights. Greenleaf on Ev. § 107. Holmes v. Holmes, 6 La. 463. From the uncontradicted evidence of this character the jury were bound to consider the marriage as proved, and their verdict, so far as relates to the proof of the marriage, is in accordance to our view of the law* The other slanderous words have the support of no evidence whatever to substantiate them.

The other bills of exceptions taken by the counsel for the defendant we do not consider it necessary to notice, otherwise than by saying that we are of opinion that the judge did not err in his decisions rendered on the matters excepted to; they rest on principles so familiar, as to require no particular explanation.

The damages we do not consider excessive; and the judgment of the District Court is in accordance With our view of the justice of the case.

Judgment affirmed.