text:
    V. Thompson v. The General Mutual Insurance Company of New York.
    A verdict of a jury for plaintiff in accordance with a former judgment of the District Oourt in the same case, upon a doubtful question of fact; held to be sufficient to authorize an affirmance by the Supreme Court of a second judgment based upon the verdict, though the plaintiff failed to present clear and indisputable proof of a right to recover.
    from the Fourth District Court of New Orleans, Larue, J.

      0. Roselius, for plaintiff.

      Mlward Briggs, for defendant, appellant.
   Buchanan, J.

(Slidell, C. J., and Ogden, J., dissenting).

This is an action on a policy of insurance, to recover a loss by fire. The case was on appeal in this Court before our predecessors, from a judgment rendered in the Court below in favor of the plaintiff.' They remanded the case for a new trial, and in the opinion delivered by Justice Rost, he says, “ This case presents mere questions of fact, and if there was in the record, positive evidence of the main fact upon which it turns, to-wit: that all the furniture alleged to have been destroyed by fire, for which the indemnity was claimed, was in that part of the house where the fire occurred, we could not interfere with the judgment.”

On the return of the case to the Oourt below, the plaintiff prayed for a trial by jury, and after receiving additional evidence of the second trial, the jury returned a verdict in favor of plaintiff. The defendants, after an unsuccessful attempt to obtain a new trial," have taken this second appeal.

On examination of the evidence, we are not satisfied that the verdict is so manifestly erroneous, as to authorize us to disturb it. The evidence on the part of the defendant, is of a nature to create a doubt in the mind, whether some of the articles for which indemnity is claimed, were consumed by the fire. There is, however, positive evidence that these articles were in the house and stowed away in the attic, previous to the fire ; and there is no evidence from which it could be inferred that they were removed before the fire, except the negative testimony of witnesses, who state that they could discover no signs in the. rubbish, that such articles had been consumed. This evidence did not satisfy the jury, and has not produced such a conviction in our minds as to induce us to release the defendants from their undertaking to indemnify the plaintiff, in the face of the verdict of the jury. The whole case has been the subject of our anxious and protracted consideration; but the majority of the Oourt is of opinion,' that in a doubtful question of fact, it is the safest course to abide by the decision of the jury, upon a case remanded, when that decision affirms the previous judgment of the Oourt of the first instance. The Judge and jury in the District Oourt saw and heard the witnesses, their reiterated decision in favor of- plaintiff, has given to her claim a sanction, which in our view supplies the want of entirely clear and indisputable proof.

Judgment affirmed with costs.

Vooehies, J., and Spofford, J., concurring. Slidell, O. J., and Ogden, J., dissenting.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    A. D. Piernas v. F. Milliet, Syndic, &c.
    A court will not arrest the execution of legal process for matters dehors the record, without bond and affidavit of the party asking relief
    But where the process of the court appears on the face of it to have been wrongfully issued, the court will at the mere suggestion of the party liable to be injured, arrest such process; and in such case it is not irregular to order a provisional stay of execution pendinga rule to quash.
    The pendency of an action to annul a supposed judgment, is no bar to a rule to quash a fi. fa. which issued thereon.
    from the Third District Court of New Orleans. Kennedy, J.

      J. & K Bermudez, for appellant.

      F. BuissonunA 0. Redmond, for appellee.
   Buchanan, J.

This is an appeal taken from a judgment dismissing a rule to quash an execution issued by the clerk at the instance of a syndic of an insolvent estate against a mortgagee, creditor of the estate for a contribution to pay privi-1 eged debts. The whole proceeding on the part of the syndic is of the most extraordinary kind. The record shows that Thomas Duplessis sued his creditors in the parish court of New Orleans in the year 1838 and surrendered a large amount of real estate, upon which there was a sum exceeding its market value, due to Duplessis’ vendors. The property was sold by the syndic and adjudicated to the mortgagees. Two tableaux were filed by Valerein Attain and Joseph Le-carpentier, syndics ; the first in 1840 and the second in 1842. The tableau filed by the syndic Lecarpentier on the 7th March, 1842, showed an amount of $47,401 17 sales at auction of mortgaged property, all adjudicated, as above said, to the mortgagees. The privileged debts amounted, according to the sam e tableau, to $7429 76, of which $3041 46 were defrayed by cash in hand, leaving a balance unsatisfied of $4388 30 ; to satisfy which, the tableau levied a contribution of 9J- per cent upon the mortgagee creditors who had purchased at syndic’s sale, but who had paid nothing on their bids. Subsequently to that tableau, to wit: on the 31st July, 1843, Hewlett & Genas, auctioneers, sold at auction by order of the syndic Lecarpentier, certain other property purchased by the insolvent from one Fiemas ; and at this sale Piernas became the purchaser for the nominal price of $610, nothing being paid, inasmuch us Piernas had a mortgage and privilege of vendor. Many years having elapsed, and the syn' die, Lecarpentier, being dead, a meeting of creditors, convened for the purpose, appointed one Felix Milliet syndic, one of the first acts of whose administration was to obtain from Piernas an obligation (dated the 31st May, 1851,) in which it is set forth that “ in consideration of a confirmatory act of sale of the present date, wherein Felix Milliet of this city in his capacity of syndic of the creditors of Thomas Duplessis confirms a sale of property made to me (Piernas) at public auction by Heiolett & Genas, auctioneers, on the 31st July, 1843, I, the undersigned, Albert D. Piernas, also of this city, do hereby obligate and acknowledge myself bound to the said Felix Milliet, syndic as aforesaid, to pay my share in the privileged costs in the failure of said Duplessis as they are now or may hereafter be determined by the proper courts of this city and parish.’’

On the 12th May, 1852, the syndic Milliet having drawn from the Louisiana State Bank a sum of $99 28, balance deposited to the credit of the late syndic, Joseph Lecanpentier, filed a tableau of distribution, in which he placed on the credit side the said balance of $99 28, also the price of adjudication to Piernas at Hewlett & Genas' sale, $610, and on the debit side charged privileged debts, principally taken from the old tableau of leearpantier, making an aggregate which exceeded by $711 42 the amount of cash ($00 28) in the syndic’s hands, and at the bottom of the tableau is a memorandum charging Piernas with the whole of that balance, as a contribution upon his bid, although exceeding by $100 the whole amount of his bid.

This tableau was advertised and in due time homologated ; and in July, 1853, & fieri facias was issued from the court whore the proceedings were pending, commanding the sheriff to demand of Albert L. Piernas the sum of $711 42 “for the balance which he has to pay agreeably to the terms of his obligation filed on the 12th May, 1852, and homologated so far as not opposed on the 26th May, 1852, and also one dollar and ten cents of this writ, which Felix Milliet, as syndic of the creditors in this case, lately recovered by judgment of the said court, and if he shall not pay the same after legal demand, that then you shall cause the same to be made, &e.”

This writ of fieri facias was returned 18th November, 1853, “ stayed by order of plaintiff.” On the 25th November, 1854, an alias fieri facias of the same tenor was issued; and on the 16th December, 1854, the district court granted, on motion of Piernas, a rule upon the syndic to show cause why the alias fieri facias should not be quashed and annulled as having been “issued illegally and without right.” In granting this rule nisi, the court ordered a provisional suspension of the execution of the writ. To this rule the syndic filed exceptions, the third of which is as follows: “ That plaintiff in rule is also plaintiff in a suit No. 6740 of the docket wherein on various grounds he prays that the judgment for the enforcement of which the fi. fa. is arrested by said rule be avoided . and annulled. That this rule anticipates the trial of said suit and a favorable judgment for plaintiff.” After hearing, the court sustained this exception and dismissed the rule ; from which judgment a suspensive appeal has been granted by the district court, notwithstanding an effort on the part of the syndic to make the appeal devolutive; that court being of opinion “ that the real justice of the case entitles the defendant in execution to protection.

In this court the appellee has relied altogether upon the technical ground that th a fieri facias could not be stayed except by process of injunction.

As a general rule, and where the relief of a supercedoas is asked upon matters which do not appear upon the face of the proceedings, a court will not make an order to arrest the execution of process issued by the clerk, without an affidavit, and a bond given to secure the party who is interested in having the process executed, from the damages which he will probably suffer by the order, if wrongfully obtained. But when the process of the court appears on the face of it, to have been wrongfully issued, as for instance when a fieri facias has been issued by the clerk without a judgment to support it, the court has an undoubted right to interfere, and on the suggestion of the party injured, or even exproprio motu to arrest such unlawful proceedings. All judges possess the powers necessary for the exercise of their respective jurisdiction, although the same be not expressly given bylaw. C. P. Art. 130. The district judge evidently viewed the case in the light here presented. See his remarks in overruling exceptions to the action of nullity. Also his reasons for dismissing the syndic’s rule to set aside the suspensive appeal. Again, what damages can the syndic suffer by the provisional stay of the execution ? He is the representative of all the creditors alike. In this case he has no interest of his own, for he is not a creditor, and never was a creditor of this estate, but has been appointed without giving security, and for what purpose does not very clearly appear, unless it be to enforce a certain judgment against Blossman and JDuplessis, which seems to be the only asset remaining to this estate, all the rest having been exhausted many years before his appointment. We have only to enquire then, whether the pendency of the suit for what is called nullity of judgment, was any bar to the stay of proceedings ordered by the district court on the 16th December, 1854. We are of opinion that it was not. On the 5th of the same month, the district Judge had expressed himself as follows, in deciding upon exceptions to the action of nullity. .

“ I incline to the opinion that the memorandum at the foot of the tableau homo-logated in 1852 is in no sense a judgment against the plaintiff, and that there is therefore nothing to annul in which he has an interest. If such be the case, he might nevertheless under the prayer for general relief, have it declared by the court that it is not a judgment, and that no execution could legally issue under it.”

Such being the impression of the learned judge, there was nothing inconsistent with the pendency of the action of nullity, in the rule nisi which he granted a few days afterwards to quash th<6 fieri facias and the provisional order to stay proceedings pending the decision of the rule.

It is therefore adjudged and decreed, that the judgment appealed from be reversed, that the rule of appellant of the 16th December, 1854-, be made absolute, and tho fieri facias mentioned in said rule be quashed and annulled ;■ the syndic, Felix Milliet, to pay costs in both cases.


author: Voorhies, J.

text:
    J. Tegart v. T. C. McCaleb, et al.
    It is incumbent on a tutor to show that he has used due dilligence to collect the assets of the administration with which he is charged, or he will be held personally liable.
    A tutor cannot, without the advice of a family meeting, encroach upon the capital of the minors in his hands, for their support, education, or even subsistence. C. 0. 843.
    One who being made a party to an appeal, answers, adopting the allegations and prayer of the appellant’s petition, but without having himself appealed, is not entitled to relief.
    from the Parish Court of West Feliciana, Weems, J.

      Bailiff, for plaintiff and appellant.

      Bowman & Mayo, appeared in the Parish Court for the defendants.
    The record does not disclose by what counsel defendant was represented in the Supreme Court.
   Voorhies, J.

On the death of Patrick Tegart, Edward Story was appointed and qualified as tutor to his minor children, Edward and Joseph Tegart. During his administration as tutor, Edward Story died, and was succeeded in his trust by John Seveny, who having also died shortly afterwards, was succeeded by Thadeus C. McCaleb. The latter instituted proceedings against Samuel M. Nesmith, administrator of the succession of Edward Story, deceased, in order to obtain the rendition of an account of tutorship, to the minors Tegart. In compliance with an order of court, Nesmith filed an account, several of the items of which were opposed by McCaleb. On the trial of the cause, the Probate Court of West Feliciana, after having sustained the opposition to some of the items, and rejected it as to others, rendered a judgneitin fivor of MaCtleb, as tutor, for the sum of $5,230 62, with five per cent interest from the 27th of August, 1845, until paid, with the right of a legal or tacit mortgage. After the lapse of several years, Joseph Tegart having attained the age of majority, took an appeal from the judgment thus rendered, and caused t# be cited as parties to the appeal Samuel M. Nesmith, as administrator of the estate of Elunrd Story, deceased, also the legal heirs of the deceased, and thoie of Thahus C. MeCaleb deceased.

The heirs of Edward Story not h iving ^prayed for an amendment of the judgment appealed from, except Edwa<■ i Tegart, whose claim cannot be examined in this form of action, the contestation thereupon rests on the ground of opposition filed by McOaléb, as tutor, to the account rendered by Nesmith, as administrator, which were disallowed by the Probate Court, and these set forth in the petition of appeal, as errors apparent upon the face of the record.

The objections set forth in McCaleb’s opposition are, that the items 2, 3, 4, 5 and 6, debited in voucher No. 13, are incorrect and unsupported by proof; that the payment of the sums debited in vouchers No. 16, 17, 19 and 20, is not shown to,have been for the benefit of the minors; that the sum of about $20 was overcharged for schooling and clothing; that Story's succession is liable for Brad~ ford’s note, not having used proper diligence to enforce its payment; and also for the sum of $160 79, the piece of property adjudicated to Marks, for which no note was-taken as required by the terms of the probate sale. McCaleb also objected, that he was not bound to take the note of Sullivan for $4,500 on account of the amount due his wards.

The Probate Court sustained the opposition, except as to item» 5 and 6 of voucher No. 13, amounting to $163 31, and Bradford's note for $30. We have been unable to discover any evidence in the record to sustain the claim of $163 31, purporting to be notes charged in Reiman’s account, as voucher No. 13. As to Bradford’s note, payable on the first of January, 1838, according to the terms of the sale, there is no evidence showing that due diligence was used to collect the same either by Story himself during his lifetime, or after his death by the administrator of his estate. It was clearly incumbent on the latter to have shown such diligence to exonerate the estate from liability. 6. N. S. 194,9 L 48, 7 R. 477. We are of opinion that these two sums were improperly allowed as credit to Story's estate.

The appellant in his petition of appeal has urged, among other objections, that ten per cent, interest, as stipulated, on the purchase money from maturity, has not been accounted for by the administrator; and that there is error in the judgment in allowing the expenses for the support and education of the minors to be taken from the capital. As it is clear that the first ground of objection cannot be considered as an error appnrent upon the face of the record, in the absence of any proof to the contrary, we think it may be fairly presumed that the purchase money was paid at maturity. Hence the tutor was only accountable for interest at the rate of five per cent, per annum, deducting therefrom his commission of ten per cent, and the expenses for the support and education of the minors. We are of opinion that the other objection is well taken. After deducting the sum of $16 70 as overcharged, the sum of $1,316 62 is charged to the minors for schooling, boarding and clothing from the 1st of January, 1837, to the 1st of Augnst, 1843. The Civil Code, Article 343, provides explicitly that the expenses for the support and education of the minor ought never to exceed his revenues. In caso of the inefficiency of his revenues to procure him an education, the tutor must cause a family meeting' to be convened in order to deliberate whether it bo for the advantage of the minor that something should be taken from his capital. In case also that “ his revenues should be evidently insufficient to procure him subsistence, the tutor, by the advice of the family meeting, may be authorized to take from the capital in order to supply his wants.” This amount was also improperly allowed as a credit to the estate of Stoi-y.

The appellant is therefore entitled, in our opinion, to recover from the succession of Edward, Story, deceased, one-half of the credits thus improperly allowed by the court below.

Edward Tegart being made a party to the appeal, has filed an answer to the appellant’s petition, adopting the allegations and prayer therein set forth. Not having himself taken an appeal from the judgment, we do not think that he is entitled to the relief which he has prayed for. See the case of

It is therefore ordered and decreed that the judgment of the court below, so far as the same relates to Joseph Tegart, be so amended as, that said Joseph Tegart recover from the estate of Edward Story, deceased, in due course of administration, the additional sum of $754 96-J, with five por cent, interest thereon from the 27t'hof August, 1845, being one-half of the sums in question which should have been included in said judgment, and that said judgment, so modified in favor of said Joseph Tegart, be affirmed, without prejudice to the rights of said Story’s succession arising from any payments which may have been made on account of said judgment since the rendition thereof by the Probate Court, or to any rights of subrogation thereto existing in favor of the legal heirs ef Thadeus C. McCaleb, resulting from payments made by the latter to his wards, and that tho costs of appeal be paid by said succession of Story.


text:
    Succession of J. A. Penney—Foster and Wife, v. S. Bloom.
    *l'he beneficiary heir is entitled to the administration of a succession, in preference to a creditor though the former be not a resident of the State.
    It suffices that the heir be actually present, when the application for the administration is made. 0.1035,1037,1088.
    from the Seventh District Court of East Feliciana, Merrick, J.

      Sawyer, for Foster and wife, appellants.

      Muse & Hardee, for S. Bloom-

   Buchanan, J.

This is a contest for the administration of a succession opened in the parish of East Feliciana, between a beneficiary heir and a creditor.

Mrs. Foster, a married woman, who claims the administration conjointly with her husband, as daughter and beneficiary heir of the deceased, resides in the State of Mississippi. But we do not find in this fact, any legal ground of preference for the other party, Bloom, who is a member of a commercial firm, having its place of business in Clinton, which firm is a large creditor of the deceased. The Article 1035, of the Civil Code, expressly declares, that in the choice of an administrator, the preference shall be given to the beneficiary heir over every other person, if he be of age, and present in the State. This article does not require a residence in the State, but simply the presence of the party in the State. We infer her presence in the State, from the fact of her presentation of a petition in her own name, and her offer to qualify personally, as well as from a statement made by the Judge in his reasons for refusing a new trial, to the effect that Mr. Foster, her husband, and who joins in her application, was present in court at the trial. The case of the succession of Williamson, 3 An. 262, offers many points of resemblance to the present

As to the right of a female heir to administer, see also the case of Block, 6tli An. 811. The substantive heir, is of both grades. Besides, the heir in this case acts conjointly with her husband, as in the case of Williamson. The Articles 1037 and 1038 of the Code, are corroborative of the intention of the Legislator to give the administration to the heir, whenever that is possible, by extending the right even to persons who represent the heir in the capacity of tutors, curators, or attorneys in fact. Now by the Act of 1843, chap. 145, p, 97, tutors of minors residing and qualified in other States of the Union, are expressly authorized to exercise their functions of tutor, in this State, without being obliged even to qualify here. In like manner, the right of executors residing out of this Slate to administer here, is conceded by the act of 1842, p. 302. And it would be truly anomalous, if while the beneficiary heir who lias his residence abroad, might legally claim the administration through an attorney in fact, as he undoubtedly may by Article 1035, yet he could not claim the same in proper person, in a petition presented by him for that purpose. We think the administration should have been given to the beneficiary heir and her husband-

Judgment reversed; and it is adjudged and decreed that Ann L. Penney and James A. J. Foster, her husband, be appointed administrators of the estate of Sarah Ann Penney, on complying with the legal formalities: and that the costs of the lower court be paid by the estate of said Sarah Ann Penney; and those of appeal by the appellee Solomon Bloom.


author: Spofford, J.

text:
    Same Case on Application for Re-hearing.

      Muse argued: In this case the appellee, S. Bloom, moves the court, for a re» hearing upon the following grounds, viz:
    1st. In the opinion the court delivered in this case, there is, in the humble opinion of the appellee’s counsel, the following error of law, viz: The court have cited, in support of the opinion delivered, the Acts of 1843, chap. 145, p, 97 — tutors of minors, residing and qualified in other States, are expressly authorized to exercise their functions of tutors in this State, without being obliged even, to qualify here. In like manner (the court say) ihe right of executors, residing-out of this State, to administer here is conceded by the Act of 1842, chap. 1142;., p. 302.
    May it please the Court, it is most humbly, and respectfully submitted, that itt is by the special legislation here referred to, that, a non-resident administration has. keen provided for in the cases herein slated. As yet no such legislation lias authorized a non-resident administration of Estates, in process of settlement before the courts of the State; and it would seem most extraordinary that the court should establish, by analogy, a non-resident administration of estates, purely and simply, in the absence of special legislation — when by the Civil Code, such administration is not only not provided for, but provided against. On whom, it is respectfully-asked, could process be served in the administration of an estate represented by a non-resident administrator 1 Would it not be necessary to appoint a curator-ad hoc to represent the non-resident administrator!.!
    2d. It is respectfully suggested, that there is the following error of fact in the opinion delivered, viz: Although the applicants, Foster and wife, declare them-, selves to be residents of the State of Mississippi in their application, yet the-court infers that they are present, from the following facts, viz: ]st. “ We infer-her presence in the State from the fact of her presentation of a petition in her-

      own name, and her offer to qualify personally, as well as from a statement made by the judge in his reasons for refusing a new trial, to the effect that Mr. Foster her husband, acted jointly in her application, and was present at the trial." May it please the court, there is nothing, in the opinion of defendant’s counsel, in the form in which this non-resident has presented her petition to the court, which distinguishes it from the multitude of cases in which non-resident litigants appear in our courts through their attorneys at law. Her attorney's name, and not her own name is affixed to the petition. To “ infer ” the presence in the State of a declared non-resident, would be, in the poor judgment of appellant’s counsel, a most violent presumption, and would doubtless people the State with multitudes of litigants, whose feet have never trod the soil of Louisiana. As to the fact, that Foster1, the husband, “ was at the trial,” or in the courthouse, on the day of the trial, it is humbly submitted that nothing could be less conclusive of a, presence in the State in the sense of the code than such a fact, for there is nothing more common or reasonable, than that a non-resident litigant, being in reach of the courthouse, should be present at the trial.
    It is humbly, and most seriously submitted, that there was nothing before the court of the first instance, either in the trial on the merits, or on the trial of the motion for a new trial, on which the court of the first instance eould have rendered a different judgment. All that was done or offered to be done was, solely and exclusively, the actings and doings of an attorney at law. No special agency or procuration was exhibited from the applicants, neither before nor after the trial. All! all! was purely and simply the work of an attorney at law.
   Spofford, J.

The expression “present in the State,” found in Art. 1035 of the Civil Code, and the word “present” in Art. 1114 seem to have been chosen ex industria, and by way of contrast to the common phrase “ domiciliated in the State.”

This is rendered more probable by a reference to a statute antecedent to the Code, which provided “ that all curators to vacant estates and estates ab inlestato shall be appointed in the parish where the deceased last permanently resided: Provided, however, that the said persons have a domicil within the State.” Act March 22nd, 1822, See, 1, (Sess. Acts, p. 66.)

By the Code of 1825, the beneficiary heirs were required to be placed in the administration, if they are of age, and present or represented in the State.

This presence is required, because, otherwise, they could not take the oath and give the bond before the proper parish officer, within ten'days from their appointment. Sess. Acts, 1842, p. 302.

By complying with these formalities, they subject themselves personally to the jurisdiction of the court.

Like administrators domiciliated in ihe State, they may absent themselves for a time, on the condition that they leave their general and special power of attorney with some person residing in the parish or in an adjoining parish, to represent them in all the acts of their administration, and, before their departure, deposit an authentic copy of such power of attorney in the office of Recorder of Mortgages of the parish. Sess. Acts 1847, p. 115.

As it may beunferred from the record in this case, that the beneficiary heir was present, and as! she cannot qualify without being present, in the sense of the Code,no injury' will result from her appointment as administratrix, subject, of course, to a compliance, on her part, with all the requirements of the law.

Re-hearing refused.


text:
    Gaspard Theurer v. Louisa Schmidt.
    Negotiable notes made by the husband and donated to the wife, cannot be enforced against the husband, when it neither appears that the transfer of them was made by the wife with the authorization of the husband, nor that the holder was a bona fide holder for value.
    from the Second District Court of New Orleans, Lea, J.

      Dufour, for plaintiff and appellee:
    1.Proceedings to annul the acts of the wife for want of authority, can be instituted by the hushand. Art. 131 O. C.
    All donations made between married persons, during marriage, are always revocable. Art. 1742 C. C.
    All donations disguised, or made to persons interposed, between husband and wife, are null and void; and this nullity, being considered by jurisconsults as absolute, may in all cases be invoked by the contracting parties. Art. 1747 0. C.; 1 L.E. 186; 4 R. 214; 5 Annual, 579 ; 6 Annual, 676 : 7 Toullier, No. 558; 6 'l’oullier, 76, etseq-, 4 Marcadé, p. 245, 286.,
    2.The true character of the act of mortgage may be shown by parol, because it is alleged to have been made in contravention of an express provision of the law. Art. 1747; 8. N. S. 694; 4. R. 509 ; 1. Greenleaf No. 284.
    The witness offered to explain the real object of the act of mortgage is the mortgagee himself, the other party to the notarial act, which is allowed by law. 9 R. 379. _
    _ 3.Leaving aside the act of mortgage, and considering only the subsequent gift and delivery of the notes to the plaintiff’s wife, the donation was null, because not clothed with the formalities required in such cases by law. Art. 1523 C. C. ; 12 R. 76; 7 N. S. 425.

      4.Bischoff has admitted he obtainod the notes from his sister-in-law, without her husband’s consent. The wife cannot grant or alienate, unless the husband yields his consent in writing. Art. 124 0. 0.
    A married woman cannot contract, unless the incapacity is removed in the manner provided by law. Art. 1775,1779, 0. 0.
    The transferror, being the plaintiff’s wife, she had no right to sue her husband upon the notes, and therefore could not assign any to her endorsee. Non dat qui non habet. 1 Rob. 220; 6 Rob. 276 ; 5 M. 161.
    5.The real issue involves, after all, an ordinary question of commercial law. Is Bischoff’s possession of the notes legal or not ? The contest is on Bischoff's title. He is shown affirmatively to have known from whom he was taking the note, and to have been aware of the existence of the equities and legal defences of the maker thereof. Notes taken under circumstances affording reasonable grounds for suspicion, are taken at the risk of the taker. 13 L. 116.
    If the person be not what the law considers a bona fide holder, and if at the time he received the paper, he knew that circumstances existed which rendered it improper that the payment should be enforced, he will not require any better interest in the same than the party had who transferred it to him. Ohitty on Bills, p. 263; 17 L. 158 ; 18 L. 94; 5 L. 49 ; 14 L. 256; 3 N. S. 291.

      Schmidt, for defendant and appellant.

      0. Mawrian, for Bischoff, one of the appellants :
    What would be the Rights of Louisa Schmidt, supposing the Notes were STILL IN HER POSSESSION ?
    If Louisa Schmidt was still in possession of the notes and she was claiming the payment thereof from the plaintiff, he would, as he has done here, plead simulation and the revocation of the donation on account of ingratitude of the donee.
    Well, independent of the turpitude on which he must rely to establish the simulation, and which, as we think, would oblige a judge to throw his defence out of court, Theurer would find himself between two pleas irreconcilable one with the other; for if there was simulation, the donation would never have any existence, for what is simulated is not real, and consequently there would be no occasion for a revocation. On the other hand, asking .a revocation for one. of the causes provided by law, is tantamount to an acknowledgment of the existence and reality of the donation.
    It is not for us to reconcile these contradictions. Wo will only try tó show that neither on the ground of simulation or that of revoeability, could Theurer succeed against Louisa Schmidt.

    1st. On the plea of Simulation.
    Before the court A qud Theurer was allowed to establish the simulation of an authentic act to which Louisa Schmidt was a complete stranger, and in which Theurer acknowledged himself indebted to Merano and Revoil in a sum of $25,000, for which he gave three promissory notes of $8,338 33 1-3 to his own order and by him endorsed in blank, bearing mortgage on the property described, which notes were delivered to Merano. Such an act made full proof, of itself, of every thing it contained. It could only be varied by a counter letter from Merano and Reroil. None existed — none could be produced. But the judge cl quo permitted the introduction of parole evidence to contradict and vary the act. The introduction of the testimony was opposed, but, notwithstanding the opposition, it was admitted. Fortunately, a bill of exception was taken, reserving all rights against the violation of the law, and wo trust the testimony will be disregarded by this honorable court. We roly upon that principle so often laid down by our Supreme Court, “ that in the absence of an allegation of fraud or error, the only proof admissible between the parties to v written contract or their representatives to prove simulation or conditions and stipulations beyond those contained in the written instrument, is a counter letter or something- equivalent.” C. O. 225G ; C. C. 310, Art. 342; Wallv. Hampton, 2 N. S. 304; Rawle v. Fenessy, 0 New S. 206 ; Balón v. Lvcroix, 8 N. S. 448; Maignan v. Gleises, 4 Loui. 1; Badon v. Badon, J. C. 109 ; Broussart v. Sud-rique, J. C. 351; Purdon v. Linton, 9 Lou. 5GG; LAautaud v. Baptiste, 3 R. 441; Citizens’ Bank v. Tucker, 6 R. 443; Macarty v. Canal Co. 8 R. 102; I)a-hadieY. Poydras, 3 An. 153; Wilson v. Phillips, 4 An. 158; Gautier v. Briault, H. 481; Fuselier v. Fusilier, 5 An. 132, &c., &c.
    The simulation of the act of October 1st, 1850, could therefore not be legally maintained.
    2d. On the ground op revocability of the donation on the ground of INGRATITUDE.
    In order to obtain the revocation of a donation for any cause whatever, there must be a donation. Well, if, as we have contended above, the act of the 1st October, 1850, must stand as full proof of its contents, and if that act could be construed as a donation, which is more than doubtful, who would be the donor ? Gaspard Theurert Who would be the donees? Merano and Revoitf Louisa Schmidt would be a stranger to the act, and the revocation of it could not be prosecuted against her. On the other hand, admit that the parole evidence could have been legally admitted, what then ? AVhy the donees would still bo Moreno and Revoil, and they would have donated the notes to Bufour, and Bu-four would have donated them to Louisa Schmidt.- — Louisa Schmidt would then he the donee of Bufour,- — and if so, how could Gaspard Theurer ask the revocation against her? We do certainly not attach much weight to this reasoning, except so far as it tends to show a state of things so absurd, that it adds a new ground for rejecting parole testimony.
    But, we will go further and consider the question as if we had before us a clear, direct, undisputed donation from Gaspard Theurer to his wife, Louisa Schmidt, could Theurer obtain the revocation of it on the ground of adultery ? We say he could not.
    The 1547th Art. of the Civil Code says : “Revocation on account of ingratitude can take place only in the three following cases :
    1st. If the donee has attempted to take the life of the donor.
    2d. If he has been guilty towards him of cruel treatment, crimes or grievous injuries.
    3d. If he has refused him food when in distress.
    We pray the court to remark that our Art. 1547 is literally copied from the 955 Art. of the Napoleon Code.
    In the case before us, it is not alleged and cannot be contended that Louisa. Schmidt has either attempted to take the life of Gaspard Theurer, or that she has refused him food when in distress.
    The 1st and 3d paragraphs of Art. 1547 may therefore be left aside, as not applicable to the case.

      There remains, therefore, the second paragraph, to wit: “If the-donee has been guilty towards the donor of cruel treatment, crimes, or grievous injuries.” The charge is adultery.
    Does adultery come within the appellation of cruel treatment, crimes, or grievous injuries ?
    If it does not, then it is no cause of revocation of a donation on account of ingratitude.
    We have already said that the 1547 Art. of our Code is verbatim the same as the 955 Art. of the Code Napoleon.
    The French for “ Cruel treatment, crimes, or grievous injuries,” are both in the Napoleon Code and in the French part of our own Code, “ Sevéres délits ou injures graves.”
    What is the signification of these words according to the French writers commenting on the 955 Art. of the Napoleon Code ?
    Rognon, Codos Frangais expliqués, on Article 306 of the Napoleon Code, says:
    “Los excés sont les actos violents qui peuvent mettre en danger la personne; par sévices on entend tous mauvais traitements moins violents mais habituéis.— Los injures graves résultent d’actions, paroles ou écrits outrageants qui portent atteinte á l’honneur.”
    The same author, on the 955 Art. of the Napoleon Code, says:
    “Nous avons expliqué article 305 ce qu’on entend par sévices et injures graves. Les délits contre la personne du donatour sont ou des sévices ou des injures. Ainsi celui qui fait des blessures ou porte des coups au donatour se rend coupable onvers lui d’un délit (Article 309 Code Pénal) qui se confond avec sévices. Celui qui le calomnie est coupable d’un délit (Article 307 Code Pénal) compris dans les mots injures graves-, mais les délits contre les propriety du donateur, par exomple un vol, (Article 379 Code Pénal) suffraient aussi pour prouver l’ingratitude du donataire et pour révoquer la donation, commo l’a jugé la Cour Supréine par arrét du 24 décembre, 1827. (Sirey, Tome 38, 1, 256.)
    • Merlin Rep. Jur. verbo Delit: “ Oe terme pris dans son acception la plus étendue désigne et les ci'imes proprement dits, let toutes es actions reprehensi-bles dans l’ordre social,” faire ce que défendent, et ne pas faire ce qu’ordonnent les lois qui ont pour objet le maintien de l’ordre social et la tranquiliité publique est un délit. “ Nul délit ne peut étre puni de peines qui n’étaient pas pronon-cées par la loi avant qu’il fut commis.”
    Same author, same work, verbo injures : “ Outrages par paroles, ou par écrit ou par voies de fait.” (U2§P° the explanations and examples given.) Touillier Ed. Bruxelles, Yol. 3, p. 92, No. 322, et seg ; Ib. Vol. 1, p. 164, No. 669 et seg ; Mavcadé, Yol. 3, p. 696.
   Voorhies, J.

The plaintiff alleges that he was married to Louisa Schmidt about seven years ago, and has ever since treated her with kindness and affection ; that in the latter part of 1850, she besought him to make her some sort of provision, in case he should die before her, to which he consented, with a view to secure his domestic quiet; that, in order to give effect to her desire, on the 1st of October, 1850, he executed a mortgage wherein he acknowledged having-made to his own order, and by him endorsed, three promissory notes, each for the sum of §8333 33 1-3, at 12, 18 and 24 months, which notes were forthwith delivered over to her by Etienne Mérano and Daniel Revoil, the common friends of the parties, with the understanding that the same might be enforced against his succession ; that, shortly after this, she deceived and betrayed him in the most outrageous manner; she became dissipated and kept close com-> pany with a certain individual named P. Massip, with whom she was seen at undue hours, and from whom she received and preserved a variety of love-letters ; that, upon his remonstrance against her conduct, she left and abandoned his house, and carried away a portion of his household effects; that all of these acts are grievous injuries inflicted on a husband’s honor, and calculated to bring him into public disgrace and contempt with his neighbors; that from her gross ingratitude, said donation has become null and void ; that, prompted by lucre, and with a view to make him liable for these notes, which she well knew were only intended to be used in case of his death, she combined with her brother-in-law, George Bischoff, and also with the house of Dufour, Du-rand & Go., wherein said Massip had formerly been a clerk, and fraudulently and collusively passed the same to them, although they knew full well that she had no right to do so. He therefore prays that she be cited, and that a decree of divorce or separation from bed and board be granted in his favor against her; that the donation be revoked, and the notes declared void and restored to him; that Bischoff and Dufour, Durand & Go. be also made parties to show cause why they should not return him said notes, on the grounds set forth in his petition, and on the further ground that they are not bona fide holders, not having given any consideration, and knowing also that Louisa Schmidt had no right to transfer the same, and had done so against his will. The plaintiff filed a supplemental petition alleging that Bischoff had admitted, under oath, his possession of the notes in question, one of which was placed by him in the hands of Dufour, Durand S Go. for collection in bank; and therefore prayed that said Bischoff and Dufour, Dwand & Go. be enjoined from making any disposition of said notes during the pendency of the suit.

Louisa Schmidt filed an exception, which was sustained by the District Court, that an action of divorce, or separation from bed and board, could not be cumulated with other causes of action, especially against third persons. The plaintiff, under this exception, having, by an amendment of his petition, made choice of the other cause of action and abandoned the action for divorce, she filed another exception, which was also sustained by the court, that the present action could not ho maintained against her during the existence of the marriage.

Bischoff next appeared with an exception, alleging that before he was cited, he had already instituted an action against the plaintiff to recover the amount of the notes in controversy, of which he is the true and lawful owner; that if the plaintiff had any defence to make against them, he must make the same in the Fifth District Court of New Orleans, wherein that suit is now pending. He also urged as a peremptory exception, “ that all the facts and circumstances disclosed in plaintiff’s petition for the purpose of annulling the notes and mortgage are illegal, immoral, contrary to public policy, and intended as a fraud upon the law and the public.”

The answer of Dufour, Durand <& Go., after pleading the general denial, is that they were absent and represented by their clerk, Delhoste, when on the 27th of March, 1852, P. Massip, formerly a clerk of (heirs, came to their store in company with another individual unknown to them and to Delhoste, and requested the latter to render said person the service to place in bank for collection a certain promissory note of $8838 38 1-3, which note was placed by Delhoste in the Bank of Louisiana for collection, was protested for non payment, and on the 5th of April, 1852, returned back to the same person always accompanied by P. Massip, &c. They also claimed of the plaintiff in reconvention the sum of $20,000, as damages for slander, &c. It is deemed unnecessary to notice other parties and pleadings in the cause.

After hearing the evidence and disposing of other questions involved in the litigation, the judge d quo proceeds to remark in his decision on the merits of the cause as follows: “The evidence, in my opinion, discloses an unprincipled combination on the part of a wife and brother-in-law against the honor and fortune of an injured husband ; the allegations on this point are fully sustained by the evidence. Setting aside the illegality of Bischoff's title, as being derived from' a married woman, without her husband’s consent, it is manifest that Bisolioff in fact gave nothing for the notes and has no interest in them whatever, except as the means and instruments of plunder. I deem it unnecessary to recapitulate the evidence, the details of which are alike conclusive and revolting. The plaintiff is, in my opinion, clearly entitled to a judgment.” Bisolioff is appellant from that judgment.

It has been strenuously urged that the plaintiff’s action is not maintainable, because he is not permitted to set up his own turpitude. The allegations of the petition, as we have seen, do not give any sanction to such an assumption. But it is insisted that the evidence discloses the fact that_ the act was perpetrated by the plaintiff, with intent to defraud his child, issue of his former marriage. The evidence on this score does not appear to have satisfied the District Judge, and, from our own examination, we are not ready to say that ho erred in his conclusion.

The ground urged by Bisehoff, that he held the notes in controversy in good faith and for a valuable consideration, we concur with the judge d quo in his conclusion, is entirely unsupported by proof.

We do not think the District Judge erred in holding that parol evidence was admissible to prove the consideration of the notes in controversy. In the case of Klein v. Dinkgrave, 4 An. 540, the court said: “It would bo superfluous to cite authority to show with what liberality parol evidence is admitted to ascertain the equitable rights of the parties Jitigant in suits upon bills and notes.”' 6 N. S. 566; 3 L. 261; 9 R. 183. If such evidence be available to the maker of a promissory note to sustain his plea of want of consideration in an action brought against him by the holder, we can perceive no reason why it should not be equally available to the maker where he asserts his right to the restoration of his notes, as in the present case.

It is therefore ordered and decreed, that the judgment of the District Court be affirmed with costs.


author: Slidell, C. J.

text:
    L. J. Sigur v. W. H. Crenshaw.
    An action will lie against the incumbent of an office, for the fees and emoluments of the office received by him, after his successor has been duly qualified to act, and after demand made for the surrender of the office.
    from the Parish Court of East Baton Rouge, Robertson, J.

      A. M. Dunn, for plaintiff.
    Elam, for defendant and appellant.
   Slidell, C. J.

This action is brought to recover from the defendant the-amount of fees and emoluments alleged to have been received by him as the Register of the Land Office, after the plaintiff, who superceded him, had been-duly commissioned and qualified. After an amicable request, to which the defendant refused to accede, the plaintiff proceeded by writ of mandamus to oust the defendant, and obtained a decree in his favor, as reported in 8th Annual, 422.

It is said by the defendant that there is no express warrant in our Code of Practice for such an action. This may bo true ; but we have no hesitation in sustaining it upon principles of natural justice and equity. The commission of the Governor, which was held to be constitutional and legal, conferred on Sigur, upon the fulfilment by him of the legal prerequisites of an oath and bond, the right to exercise the office, and take for his own use the foes and emoluments thereunto pertaining. This, the defendant without lawful right prevented Sigur from doing; and illegal^? persisting in the exercise of the office, received the foes and emoluments which would have come into the plaintiff’s hands. Tt is a case, therefore, in which the defendant cannot,-with a good conscience retain the money, but ought ex osquo et bono to pay it to the plaintiff; and where such a case is presented, and no rule of policy or strict law intervenes to prevent it, a court of justice will lond its aid. We may add that a contrary conclusion would be clearly against public policy. For it would be an encouragement to the usurpation or wrongful retention of public offices, thus frustrating the will of the people, or those to whom they may have delegated the appointing power.

It is no excuse against such a claim that the constitutional question on which the right of office turned was res nova, and divided the opinions of the public and the judiciary. Such a consideration may shield the defendant from any moral imputations, but does not touch the legal liability to account to plaintiff for the ices received.

A question is raised from what date the plaintiff is to be considered entitled, as against the defendant, to the fees and emoluments of the office. Sigur was commissioned on the 31st March, 1853. Ho took the oath of office, and executed his bond on 8th April, which bond was approved by the Governor, on the 13th April, 1853. We are of opinion, that although a demand was made upon Oranshaw to surrender the office at an earlier day, ho was not legally bound to surrender the office, its books and effects, until the latter date. The giving bond to the satisfaction of the Governor was required by the statute creating the office ; and we are not prepared to say that as a faithful public servant, the old incumbent was bound to surrender his office and the property of the State pertaining to it, until the guaranty for his successor’s fidelity?- had been given.

Testing the verdict of the jury by this standard, it seems to be correctly objected by the defendant, that it exceeds the amount of fees and emoluments collected by the defendant after 13th April, 1853, until the actual surrender of the office in the following December, and as the ascertainment of the correct ■ sum upon ths legal basis above stated, involves an examination of the accounts and vouchors in evidence, we shall, unless the parties can agree upon the amount, refer the cause to an auditor.

April —, 1855. The Auditor having made his report, we are satisfied there is no error in the verdict and judgment to the prejudice of the appellant. No answer to the appeal having been filed, it is unnecessary to enquire whether a further (small) amount should not have been allowed to plaintiff.

Judgment affirmed, the costs of appeal (including Auditor’s fees,-$25,) to be paid by the defendant.


author: Spoeford, J.

text:
    The State v. James Patten.
    Whenever a prisoner’s sanity at the time of the offence alleged, is in question, the rule that he may control or discharge his counsel at pleasure, should be so far relaxed as to permit them to offer evidence on these points, even against his will.
    In a criminal case, when after the close of the testimony on behalf of the State, the counsel of the accused alleged the prisoner’s insanity before, at the time of, and since the killing, and offered to introduce testimony in proof of the fact, and thereupon the prisoner arose and repudiated such defence, and discharged his counsel, and the court gave the case to the jury without further evidence or pleadings on behalf of the prisoner — Held: that the court erred in allowing the prisoner under the circumstances,-to discharge his counsel, and erred in not allowing them to offer proofs on the question of insanity.
    from the First District Court of New Orleans, Robertson, J.

      Isaac H. Morse, Attorney General, for the State,
    cited Rex v. Oxford,, S. 0. T. R. 525 ; Art. 0. P. p. 11, et seq.; 1 Hale, P. C. p. 33; TJ. 8. v. McGhee, 1st Curtis U. S. 0. R.

      La/rue & Whitaker and A. Hennen, for defendant and appellant.
   Spoeford, J.

Upon the trial of James Patten for the murder of Walter Turnbull, the following bill of exceptions was taken by the prisoner’s counsel:

“Be it remembered, that on the trial of this cause, on the 20th day of March 1854-, after the evidence on the part of the State was closed, and when the counsel of the prisoner were proceeding to prove, by the evidence of the witnesses, the insanity of the said prisoner at the time of the killing, set forth in the indictment, and a longtime before, and even since the said killing, the said prisoner arose and objected to, and repudiated the said defence, and insisted ‘upon discharging his counsel and submitting his case to the jury without any further evidence or action of his counsel in his defence; his counsel opposed and remonstrated against the prisoner’s being permitted to do so, alleging that they were prepared to prove the defence by clear and irresistible testimony, but the court overruled the objection of the said counsel and permitted the prisoner to discharge his counsel, and refused -to hear them further in his de-fence, and gave the case to the jury without any further evidence or pleading on his behalf; to all which opinion and ruling of said court, the defendant’s said counsel excepts and prays his exceptions may be signed,” &c.

[Signed,] Jno. B. Rorertson, Judge.

There was a verdict of “guilty, without capital punishment,” and, after his former counsel had, in the quality of amici curim, attempted to obtain a new trial and an arrest of judgment without success, the prisoner was sentenced to hard labor for life in the penitentiary.

From that judgment the present appeal has been taken.

The sanity or insanity of the prisoner is a matter of fact; the admissibility of evidence to establish his insanity, under the circumstances detailed in the bill of exceptions, is a matter of law, and the only matter which the constitution authorizes the tribunal to decide.

The case is so extraordinary in its circumstances that we are left without the aid of precedents.

In support of the ruling of the District .Judge, it has been urged that every man is presumed to be sane until the contrary appears, and that a person on trial for an alleged offence has a constitutional right to discharge his counsel at any moment, to repudiate their action on the spot, and to be heard by himself; hence the inference is deduced that the Judge could not have admitted the evidence, against the protest of the prisoner without reversing the ordinary presumption, and presuming insanity.

In criminal trials, it is important to keep ever in mind the distinction between law and fact, between the functions of a Judge and those of a jury.

It was for the jury and the jury alone to determine whether there was insanity or not, after hearing the evidence and the instructions of the court as to the principles of law applicable to the case.

By receiving the proffered evidence for what it might be worth, the Judge would have decided no question of fact; he would merely have told the jury: “The law permits you to hear and weigh this evidence ; whether it proves any thing, it is for you to say.”

By rejecting it, he deprived the jury of some of the means of arriving at an enlightened conclusion upon a vital point peculiarly within their province, and in effect, decided himself, and without the aid of all the evidence within his reach, that the prisoner was sane.

It is idle to say that the legal presumption, and the prisoner’s own declarations, appearance, and conduct on the trial, established his sanity to the satisfaction of both Judge and jury; for, presumptions may be overthrown, declarations may be unfounded, and conduct and appearances ma}' be deceitful; and the prisoner’s counsel, sworn officers of the court, with their professional character at stake upon the loyalty of their.conduct, alleged that they stood there prepared to prove by what they deemed clear and irresistible testimony, that the accused was insane at the time of the homicide, long before, and ever since ; so that the sole inquiry now is, not whether they or the court were right as to the fact of sanity, upon which we can have no opinion, but whether they should have been allowed to put the testimony they had at hand before the jury, to be weighed with the counter evidence.

If the prisoner was insane at the time of the trial, as counsel offered to prove, he was incompetent to conduct his own defence unaided, to discharge his counsel, or to waive a right.

Upon the supposition that the counsel were mistaken in regard to the weight of the evidence they wished to offer, as they may have been, still its introduction could do the prisoner no harm, nor could it estop him from any other de-fence he might choose to make on his own account; neither could it prejudice the State, for it is to be presumed that the jury would have given the testimony its proper weight; if, on the other hand, the counsel were not mistaken as to the legal effect of this evidence, the consequences of its rejection would be deplorable indeed.

The overruling necessity of the case seems to demand that, whenever a prisoner’s soundness of mind and consequent accountability for his acts are in question, the rule that he may control or discharge his counsel at pleasure, should be so far relaxed as to permit them to offer evidence on those points, even against his will.

Considering, therefore, that it would be more in accordance with the sound legal principles and with the humane spirit which pervade the criminal law, to allow the rejected testimony to go before the jury, the cause must be remanded for that purpose.

It was said in argument, on behalf of the State,-that the alleged insanity was, at most, but a monomania upon another topic, which could not exempt the prisoner from responsibility for the homicide.

The Judge will instruct the jury in regard to the principles of law which govern this subject, when all the facts shall have been heard. At present, the discussion is premature.

It is, therefore, ordered that the judgment of the District Court be reversed, the verdict of the jury set aside, and the cause remanded for a new trial, according to law.


author: Voorotgs, J.

text:
    T. W. Pipes v. E. Shiff & Co.
    Where a buyer has been informed, before the sale, of the danger of eviction, he cannot withhold! payment of the price. 0. C. 2535.
    from the Fourth District Court of New Orleans, Reynolds, J.

      W. R. Sennen, for plaintiff.

      LeGardeur, for defendants and appellants.
   Voorotgs, J.

The defendants being sued for the price of a certain quantity of molasses, resisted the payment, on the ground that the molasses, on arriving at the port of New Orleans, was sequestered at the suit of G. W. Glorio, who claimed the same under a prior sale from the plaintiff.

The plaintiff was called in warranty in that suit, and the molasses released on the defendants’ bond. The tradition or delivery of the molasses to the defendants, took place on the plaintiff’s plantation in West Feliciana, the former having been previously informed of an agreement to sell the molasses to Ola/rlo, and the failure of the latter to comply with his obligations. On the advice of the defendants’ agent, the plaintiff waited two or three days longer, to see if Glarh would call for the molasses, at the expiration of which time, the sale and delivery to the defendants took place. This, coupled with a letter from Glarh to Rvpes, is the only evidence we have before us in relation to the alleged disturbance. Glarh, in his letter, tells Rifes that he has seen his factors and informed them that he would take his molasses and cistern sugar at the price agreed upon between them, and be at his house in three or four days, ready to receive all, bringing orders to him from his factors for delivery, &c. Inasmuch as the defendants were apprised at the time of sale of the transaction which has given rise to the suit in question, we think, under the textual provisions of Article 2536 of the Civil Code, that the defence is clearly unavailable.

We are of opinion that the circumstances of this case are insufficient to authorize us to allow any damages to the plaintiff, as prayed for, on the ground that the appeal is frivolous and was taken for the sake of delay.

It is therefore ordered and decreed, that the judgment of the District Court be affirmed, with costs.


text:
    The State v. J. Ridgley—S. F. Slatter, Surety.
    A recognizance or bond, conditioned that the accused shall appear in court on a certain day to answer to the charge of having been u concerned in a row,” &c., is void, as “ being ooncerned in a row” is not,per se, an indictable offence.
    Judgment cannot properly be rendered on a forfeited recognizance or bond, when a criminal prosecution will not lie for the offence alleged.
    from the First District Court of New Orleans, Robertson, J.

      Isaac H. Morse, Attorney General, for the State.

      J. Henderson, Jr., for defendants, appellants.
   Spofford, J.

On the 2Gth December, 1843, judgment was rendered in the First District Court of New Orleans against John Ridgley, as principal, and S. F. Slatter, as suret3>-, on a forfeited bond conditioned for the appearance of the former before the said court.

This judgment was not signed until the 22d of September, 1854.

Execution having issued against the surety without any notice of judgment, he took a rule on the District Attorney to show cause why the writ should not be quashed, for numerous irregularities in the proceedings patent upon the record. Upon a hearing, this rule was discharged, and Slatter has appealed both from the original judgment on the bond, and from the judgment dismissing the rule.

The bond is void upon its face. Its condition is, that Ridgley shall appear on a given day, ’before the Criminal Court of New Orleans, “ to answer to the complaint brought against him for having been concerned in a row in the Orleans Ball-Room, within the jurisdiction of the said court.”

“Being- concerned in a row” is not,per se, an indictable offence.

Judgment cannot properly be rendered upon a forfeited recognizance or bond, when the accusation will not justify a criminal prosecution. State v. Jones, 3 An. 15. State v. Wooten, 4 An. 515.

It is therefore ordered, that the judgment against S. F. Slatter, surety, be reversed, and the writ of execution issued thereupon quashed. It is further ordered, that the State take nothing by its motion.


author: Ogden, J.

text:
    J. Bloodgood v. J. M. Wilson.
    A purchaser of a slave affectéd with a supposed incurable malady at the time of sale, is not entitled to recover back the price paid, in a redhibitory action, when, being advised by a physician, a few days after the sale, of the existence of disease, he fails to offer to return the slave, or neglects to employ a physician to arrest the disease.
    from the Second District Court of New Orleans, Lea, J.

      Bayne, for plaintiff and appellant,
    cited: Koch, & MaOall v. Slatter, 5 An. 739. 2 An. 67. Harvey v. Kendall, 2 An. 748. 6 An. 396. C. C. 2496, 2504.

      Mo'ise and W M. Randolph, for defendant.
   Ogden, J.

This is a redhibitory action. The plaintiff has rendered it probable by the evidence, that the slave purchased by him from the defendant was unsound at the time of the sale; but we agree with the District J udgc, that he has not made out such a case as would justify a judgment in his favor.

The slave was purchased on the 2d June, 1851. She was then examined by a physician called for that purpose by the plaintiff, and pronounced to be sound. On the 11th June following, she was examined by another physician, with a view to effecting a life insurance on her. The physician, after auscul-lating her lungs, pronounced them diseased, and advised that the application should be withdrawn. It does not appear that after this discovery, any offer was made to return her as unsound. She was set to work in the reeling-room of a cotton factory, and no physician appears to have been called to prescribe for her until after the first of August. She died on the 16th or 18th of October following. The girl does not appear to have complained or to have labored under any suffering while she was at work in the factory. The same physician who reported her unsound to the insurance company, attended her in her last illness, and testifies that she died of phthisis pulmonalis, which is generally considered an incurabie disease. No post mortem examination was made.

We think that the girl manifested no outward symptoms of disease at the time of the sale, nor until two months afterwards — that no offer was made by the plaintiff to return her on the report being made that an insidious disease was secretly destroying her — that no medical aid was then resorted to for arresting or alleviating the disease — and that, when she died, no post mortem examination was made to test the accuracy of the diagnosis of the physician who attended her, it would not be consistent with the principles established by frequent decrees of this court, to render the defendant liable under such circumstances.

It is therefore ordered, that the judgment of the court below be affirmed, with costs.


text:
    Kelly & Frazier et al. v. Tennessee Robertson et al.
    Where husband and wife are sued at the actual domicil of the wife, and the husband submits to the jurisdiction, the wife cannot except, that she was not sued at the matrimonial domicil.
    The wife is not separately liable during the existence of the community, for debts created by the husband’s drafts, though the moneys raised thereon were to pay the debts of the wife before the marriage.
    The wife who is indebted to the community cannot be garnisheed during the community for its debts.
    The wife is not responsible for the debts of the community while it exists.
    No action can be maintained to liquidate the affairs of the community, and establish the wife’s indebtedness thereunto, until it is dissolved. The community can only be dissolved by action for divorce or separation from bed and board.
    from the Sixth District Court of East Baton Rouge, Robertson, J.

      G. S. Lacey, for plaintiffs and appellants :

      Kelly, Gonynghwm & Go., now represented by the plaintiffs in this suit, having obtained a judgment, on account of a community debt, against the defendant, Charles H. Davis, for $8,484 43, and interest, brought the present action against both the husband and the wile. The grounds for such action, as set forth in the petition, are four-fold :
    1. A separate benefit and advantage, derived hj the wife, to the full extent of the claim, which formed the basis of the judgment;

      2. The unconditional acceptance of the community by the said wife, which, forever thereafter, barred her from the right to renounce ;
    3. Her indebtedness to the community, in a sum not less than $15,000, and her consequent liability to be garnisheed ;
    4. Eor an account of the community transactions, with a view of its liquidation, pro hue, and to force the wife to bring the amount of her indebtedness into court, to bo paid over to the community creditors, according to their rank and privileges.
    I. The intention of the husband to make either the parish of East Baton Rouge or Iberville his domicil, “ must depend upon circumstancesand the facts or circumstances disclosed upon the trial of the exception clearly settle, as a matter of intention, that the domicil of Gen. Davis was in the parish of East Baton Rouge.

    II. If, however, it can, by any possibility, be considered that the evidence does not go to the extent maintained by the undersigned, then we contend that, at least, it has the effect of showing that Gen. Davis had his domicil as much in the parish of East Baton Rouge as Iberville; and under such circumstances it is at the option of the persons, whose interests are thereby affected, to consider either parish as his legal domicil.
    III. This action is not confined to a separate or personal demand against the defendant, Tennessee Robertson, but is brought against her as garnishee; and also, to compel her, contradictorily with the creditors and her husband, to liquidate the community of acquets and gains. Over these the court a quo clearly had jurisdiction.
    IV". The defendant, Tennessee Demis, is liable to the plaintiffs in an action of garnishment.

    The true construction of the act of 1839, (seel 13, p. 166,) which was made by the act of 1840, (sec. 1, p. 43,) to extend throughout the State is, that all persons whomsoever, other than judgment debtors, who have any rights, credits or property in their hands belonging to such judgment debtors, are liable to be garnisheed; and the very object for which the statute was passed, viz: to reach those who could not be reached by the ordinary writ of fieri facias, is very conclusive proof that any other construction would be injudicious, unsafe and unsound. The act of Í839, when properly construed, possesses three requisites: 1st. That there should be a judgment debtor; 2d. That there should also be another person, who is not the defendant in the judgment; and, 3d. That such other person should have property, &c., in his hands, belonging to the judgment debtor. Was there not, in our case, a judgment debtor? There was, viz: Charles H. Davis! Was there not another person, who was not a defendant in'the judgment? Most dearly there was ! Mrs. Daw's, a person separate and distinct from her husband, and who was, in no wa}r, shape or manner, a party to the judgment sought to be executed! Did not that other person, Mrs. Davis, have property, rights, &c., in her hands, belonging to the judgment debtor? This question, like the two preceding it, being answered in the affirmative, shows that all the essentials for a proceeding in garnishment, under a true construction of the act of 1839, have existed; and such being the case, why should not that statute be made to apply to a wife as well as to any other person ?
    The Counsel for Mrs. Demis arc disposed, however, to view the garnishment act technically, and for that reason you find an averment in their answer, that the wife is not, “ technically,” a third person, where the husband is a judgment debtor. Tour Honors will scarcely resort to a technical construction of a statute, for the purpose of avoiding its plain and obvious intent; but if technicalities are to have any weight, we can give you one worth two of theirs : a technicality, if you will, which favors, not impedes justice. We insist that the judgment against Gen. Davis is against the community of acquets and gains; that Mrs. Gen. Demis is at least a third person to such community, and that, consequently, she is a third person to the real judgment debtor. That the judgment vs. Davis, is one against the community, is evident, from the nature of the debt upon which it is founded, and the time and circumstances under which it was rendered. Is the defendant, Tennessee Robertson, a third person to the community between herself and her husband ? Tour Honors have answered this interrogatory, in Childers v. Johnson, 6 Ann. p. 641. “This community, creditors have the right to consider as a legal entity : it must be contemplated as an ideal being, éti'e moral, distinct from the persons who compose it, having its rights and obligations, its assets and its liabilities, its debtors and its creditors.” The Counsel for the plaintiffs can well understand that the defendants, though twain, have been made, at the matrimonial altar, one; but he knows of no vow, either registered on earth, or-recorded in heaven, which has united Mrs. D ivis to that étre moral — -that ideality — that legal entity, spoken of by your Honors, in the case of Ghilders v..Johnson, above referred to. If it be true, then, that the community is the judgment debtor, and it be furthermore true, that Mrs. Davis is as separate and distinct from that community, as your H >nors from myself, then it necessarily follows, as a corollary, that the defendant is a third person to the real judgment debtor, and is, even under a technical construction of the act of 1839, liable to the proceedings in garnishment.
    V. Mrs. Davis being a debtor to the community, has no legal right tc retain that indebtedness from the community creditors, but must liquidate the community, with the view of enabling the Judge to force her to bring such indebtedness into Court, to be distributed among the creditors- according to their rank and privileges.
    The indebtedness of Mrs. Davis to the community, and the inability of the community creditors to make their money in any other way than out of the funds in her hands, must, for present purposes, be taken for granted, as the plaintiffs’ Counsel offered evidence to ■ prove these facts, and the Judge a quo refused to receive the testimony, (vide Bill of Exceptions, p — .) The question then arises, has Mrs. Davis the legal right to retain the amount of her indebtedness to community in her own hands, and to refuse to pay over the same to the community creditors? Again, we refer to Ghilders v. Johnson, 6 Ann. p. 641, in which his Honor, Justice Slidell, in delivering the opinion of the Court, says: “ Mrs. Patton is not the debtor of her husband, she is the debtor of the community; she owed this debt before marriage. The community derived no benefit from its creation. Instead of paying it with her own money, it has been paid with the money of the community. Is she permitted thus to enrich herself, at the expense of the community, and of bona fide creditors of the community? Clearly not.
    In this state of the case, viz: Mrs. Davis having in her hands a fund pledged to the community creditors, (Glaiborne & Mather, v. their creditors, 18 L. R., 504,) which they haye the right to demand, and which she illegally withholds, ( Ghilders v. Johnson,) what course is to be pursued to have the benefit of that right, which the law accords, and which the decision of your predecessors have solemnly awarded to them? Is there any other remedy which your Honors can think of and adopt, but the proceedings in garnishment, or to force Mrs. Davis to liquidate the community pro hae, with the view of compelling her, as was done in Ghilders v. Johnson, to bring the funds into court for distribution among the creditors? Strike from beneath us these remedies, and “the last plank to which we may cling is shivered.”
    The lower court has not, in the abstract, denied our right to liquidate; but virtually, such is his decision, lie makes that right dependent upon a dissolution of the community; dependent upon a condition over which we have no control; which may continue for months, nay, years, and leave us, when destiny and not ourselves have brought about the period for action, nothing but a shadow to pursue. We think, respectfully, that the decision of the District Judge is in violation of law, and we proceed to give your Honors our reasons for thus thinking.
    1. It gives to the plaintiffs aright without a remedy, 5 Ann. 758.
    2. The view of the lower Court in not permitting a liquidation of the community of acquets and gains, until after its dissolution, is in violation of settled principles of law.
    We take it for granted, that your Honors will admit the following propositions: 1st. That the plaintiffs, who are creditors of the community, have the same right of action against the wife, for the recovery of a fund pledged by law to such creditors, for the discharge of their debt, as the husband possesses: and 2d. That the lights of the husband, and consequently of the creditor, (so far at least, as the recovery of the aforesaid fund is concerned,) are, in the liquidation of the community of acquets and gains, similar to the rights of a partner for an account from his commercial copartner.
    _A simple action for an account of the copartnership dealings, when not containing a prayer for the dissolution of the concern, though heretofore, and to a great extent allowed by the early decisions of the English Courts, has of laU fallen somewhat into disuse; but there lias been no disturbance of tilos ■ authorities, so far as they permitted the action of account to lie, even in the absence of a sought-after dissolution, for the purpose of redressing grievances which would otherwise remain unredressod, or righting a wrong that would otherwise be beyond all reach and remedy; and upon that principle, it has continued to be laid down as a rule, that one partner has a right of action against his copartner for the rendition and liquidation of accounts, with the view of reaching, for the benefit of the copartnership creditors, who would otherwise remain unpaid, a copartnership fund in the hands of one of the copartners.
    “The Roman law contained doctrines, which in some measure proceeded, upon the considerations and distinctions herein above expressed. Ordinarily, the action, pro socio, did not lie to enforce a right to a general account between the partners until after the dissolution of the copartnership. But in special cases, an action pro socio lav for an account during the existence of the partnership. If one partner was prevented by the others from an equal participation in any of tile partnership property, lie might, even during the continuance of the copartners.iip, maintain the action pro socio. Potliier Pond, book 17, title 2, No. 33. Story, on Partnership, p. 355, 3d edition, 1850.
    In the case of Ilirrison v. Armitage, Sir John Leach was clearly of opinion that one partner might file a bill against another for an account, without praying for a dissolution, since it was the only remedy he had; and in a still later case, his Honor adhered to his firmer opinion, observing, that to refuse relief in these cases, except upon the terms of putting an end to the partnership, was contrary to the plain principles of justice. Furthermore, his Honor, in answer to an obj 'ction which had been raised for the defendant, that if the suit was entertained, lie might be vexed by a new bill whenever new profits accrued, said, “ what right lias the defendant to complain of such new bill if he repeats the injustice of withholding what is due to the plaintiffs.”
    For report of the cases decided by Sir John, Leach, vide Oollyor on Partnership, Perkins’ edition, p. 2C3 and 2!)£).
    In Walworth v. Holt, (4 Myl. and Cr., G19.) Lord Coitenham proceeded upon the enlarged and liberal view with which lie had entertained in Taylor v. Salmon, (4 Myl. and Or., 141,) wherein he says, “ I have thought it the duty of tin's court to adapt ita practice and proceedings, as far as possible, to the existing state of society, and to apply its jurisdiction to all these new cases, which, from the progress daily making in the affairs of men, must continually arise, and not” (as did the Judge aguo, when ho asked where is the law authorizing these proceedings) “from too strict an adherance to forms and rules established under very different circumstances, decline to administer justice, and to enforce rights for which there is no other remedy.”
    But to the case of Walworth v. Holt. ]n that case a bill was filed by some of the shareholders of an insolvent stock company, praying that an account should bo taken of all the partnership assets, and that such part as was outstanding might be brought in, and applied towards the satisfaction of the partnerships debts. A demurrer to the bill was filled and overruled. In his judgment, Lord Cottenliam entered into a veiw ful) examination of the authorities on the subject, and also of the piinciple upon which they proceeded. His Lordship, according to the report of the case, in Oollyer, £115, lays down m substance, the following, as his views of the question presented — a question closely anala-gous to tlie one now before your Honors. “ When it is said that the court cannot give relief of this limited kind, it is, I presume, meant that the bill ought to have prayed a dissolution, and a final winding up of the affairs of the company. How far this court will interfere between partners, except in cases of dissolution, has been the subject of much difference of opinion; and the difficulty created bj' contrary opinions must be overcome upon this principle, that it is better to go as far as possible towards justice than to den3' it altogether. Jf, therefore, it was necessary to go much further than it is in opposition to some higher sanctioned opinions, in order to open the door of justice, in this court, to those who cannot obtain it elsewhere, I should not shrink from the responsibility of doing so. It is true that the bill does not pray for a dissolution, and that it slates the company to be still subsisting; but its object is to have the common assets realized and applied to their legitimate purpose, in order that the plain tills may be relieved from the responsibility to which they are exposed, and which is contrary to the provisions of their common contract, and to every principle of justice.

      In Knowles v. Houghton, (says Lord Cottenham, in the case under review,) (ho court did not consider the dissolution of the partnership as a preliminary necessary before directing tiie account. In Ilichens v. Congreve, continues the same Judge, 4 Russ. 502, the bill was on behalf of the plaintiff and the other shareholders, not praying a dissolution, but seeking only a repayment to the company of certain funds alleged to have been improperly abstracted from the partnership property by the defendants, who were copartners; and Sir Anthony Hart, overruled a demurrer, and his decision was affirmed by Lord Lyndhurst. Collyor, on Partnership, Book 5, Chap. 1, §1130, Perkins’ edition, 184-8.
    The principle above enunciated by Lord Cottenham, viz: that an action for account will lie, Where no other remedy can be found to force a copartner to disgorge the partnership fund in his possession, have been recognized and acted upon to their fullest extent, by the Master of the Rolls, in Richardson v. Hastings, 7 Bi'av. 323.

      '■Ftlithorne v. Weston, 3 Hare, 387. The Vico Chancellor says, “The argument for the defendant, turned wholly upon the proposition, that a bill praying a particular account is demurrable, unless the bill seeks and prays a dissolution of the partnership. That there may be cases to which the rule thus laid down is applicable, I am not prepared to deny; but the law as laid down in the case supporting that position, was never admitted to be of universal application. The unequivocal expression of t-ho opinion of Lord Cottenham, in Taylor v. Davies, and Walworth v. Holt, — of the Vice Chancellor of England, in Miles v. Thomas, and of Lord Langdale, in Richardson v. Hastings, shows that there is no such universal rule at the present day; and I cannot but add, that it is essential to justice, that no such universal rule should be sustained. It is unnecessary to say that the court will go as far as it can to protect the rights of the parties; and I have no doubt it may interfere to support as well as dissolve a partnership.” The above was a case of partnership for a certain term, and the bill was filed during the term. The Court held that a bill for a partnership account, during- the existence of a partnership, is not demurrable merely on the ground that a dissolution is not prayed. Note to Colyer, p. 207. Lot us, however, in our effort to convince the court that a dissolution of the community is not a sine qua non to the liquidation and settlement of the community accounts; a point which induced the District Judge to decide adversely' to the plaintiffs in this action; refer your Honors, to the opinion of some of the American Courts and Jurists.
    Mr. Chancellor Kent, in Duncan v. Lyon, 3 John Ch., 3C0, 361, in speaking of the action for account, says: “I do not find that even matters of account between copartners belong exclusively to courts of equity, though in practice they may be confined there. Courts of law and equity have concurrent jurisdiction in matters of account, and it is conceded that an action of account may be brought by one partner against another. I have nót been able to discover why that action has so totally fallen into disuse.”
    In 1. Stoiy, Eq. Jur., §671, Justice Story remarks, “ that courts of equity may, perhaps, interpose and decree an account where a dissolution is not prayed for nor taken place; although, ordinarily7, they are not inclined to decree an account, unless under special circumstances, if there is not an actual or contemplated dissolution.

      Debleux & Matthews, for defendants:
    To the first ground defendant answers that the wife cannot be garnisheed by7 a judgment creditor of the husband during the existence of the marriage.
    1st. Because the process of garnishment was given by law, to make the rights and credits of debtors in the hands of third persons available to satisfy the claims of their judgment creditors, and the wife is not a third person with regard to her husband in a technical sense, and is not such a third person within the provisions of the statute of the 20th March, 1839, (sec. 13, p. 166) as can be made subject to the process of garnishment at the suit of judgment creditors of her husband — 5 Rob. 25.
    2nd. Because she cannot in any manner bo indebted to her husband, for she is incapable by law of contracting with him, and defendant is not within any exception to that law; and because she cannot be so indebted to her husband as to give him any right of action against her and plaintiffs as his judgment creditors can 1 ave no greater rights against defendant on account of such indebtedness than her husband could have-7-!3 L. 570; 6 Rob. 333; 8 N. S. 830; 3 A. 319.

      3d. Because she cannot possess and detain either the separate property of her husband or the property of the community between her and her husband from him or his creditors, he or they having the right at any time to have it seized under execution to pay his debts, and hence there can be no reason or necessity whatever for suing defendant as garnishee.
    To the 2nd ground of plaintiff’s petition already stated, defendant answers that the community between her and her husband has never been dissolved, and that she is not capable of accepting or renouncing a community until that community is dissolved in some legal manner, and that any act of acceptance or renunciation on her part before that time is absolutely null and of no effect— O. C. Art. 978. The delusion under which the plaintiffs seem to be laboring in this part of their petition is this — that because the defendant in the suit No. 3091 on the docket of this Court prayed for a dissolution of the community and a partition of its effects, which prayer and community she afterwards renounced, yet still, plaintiffs think this is to be construed as an acceptance of the community by which she is bound for all time to come, notwithstanding the refusal of this Court to dissolve the community in the suit cited.
    To the third ground above stated of the petition, defendant replies that the community between her and her husband has never been dissolved, and that until its dissolution there can be no liquidation of it — that there is no law authorizing such judicial proceedings as plaintiffs invoke in this part of their petition.
    To the fourth ground of the petition above mentioned, defendant says that according to plaintiffs’ own showing, the debt sued for was contracted during the marriage of her and her husband, Charles H. Davis, and is consequently a debt lor which the separate property of the said Davis and that of the community under his control, is alone bound, unless it can be shown that it was contracted for or enured to her separate benefit and her separate advantage, and this she expressly denies.
    “To make the wife personally liable for the debts contracted during the existence of the community, the debts must have been incurred for her individual use and for her separate advantage.” This has been too long the settled law of this State to be questioned or discussed now — vide 7 M. 465, 5 N. S. 54, 7 N. S. 65, 10 L. 146, 6 Rob. 64, 2 Ann. 440 and 579, 5 Ann. 173, 495, 572 and 586— O. C. 2412.
   Ogden, J.

The controversy between the parties to this appeal commenced by the intervention of Kelly, Conyngham <& Co., in a suit which was brought by Tennessee Robertson, wife of Charles H. Davis, against her husband, for a separation of property'. The case was decided at the last term of this Court, and will be found reported in the 9th Ann. The present plaintiffs representing the intervenors in that suit, and seeking in this action to render the wife liable for the debt of eight thousand four hundred and thirty-five dollars forty-throe cents, for which they recovered judgment, on their intervention in the former suit against the husband alone. The community between Davis and his wife is still existing. The debt for which the plaintiffs have a judgment against Davis is a debt for which the community is liable, and the grounds of the present action against the wife, are :

1st. That although it was a debt contracted during the marriage and for which the husband as head and master of the community is liable, the wife is also liable for it personally, because it was contracted for- and enured to her separate benefit and advantages.

2d. That pending the suit brought by the wife for a separation of property she accepted the community of acquets and gains, and is therefore liable for one half of the debt.

3d. That the wife is indebted to the community in an amount exceeding the judgment the plaintiffs have obtained against her husband, and is liable to be gtirnishfeed ais a debtor of the community.

4. That the creditors of the community have a right to demand that there should be a liquidation of the community, and that the wife should be compelled to bring the amount of her indebtedness into Court, in order that the same may be paid over to the creditors of the community, according to their respective rights and privileges.

An exception was filed by Mrs. Davis, to the jurisdiction of the Court, on the ground that her legal domicil was in the Parish of Iberville where her husband had his domicil. The evidence shows that Mrs. Davis has always continued to reside on her plantation in the Parish of East Baton Rouge, where she resided at the time of her marriage, and where after marriage the matrimonial domicil was established. Her husband is made a party defendant with her in the same suit, and has submitted to the jurisdiction of the Court, and there appears to be no ground for the wife’s objecting to being sued at her actual domicil, which the husband recognizes in the same suit to be his own. The exception to the jurisdiction was properly overruled.

The first ground of the plaintiff’s action, is that the debt was contracted for . and enured to the separate benefit and advantage of the wife. The right of the plaintiffs in this respect are reserved in the decree rendered by this Court on the intervention of the plaintiffs in the suits between Mrs. Davis and her husband. Mrs. Davis in her answer to interrogatories in this suit has admitted that two of the sums of money paid by Kelly, Gonyngliam & Go., on the orders of her husband were for debts due by her anterior to the.marriage, to-wit: $303 lor a note give by her to Haney, and $1000 for amount of a note due by her to Lauriea Talbot, the principal and interest of which when paid, it appears, amounted to $1076 67.

The majority of the Court are of opinion that as these debts were paid by drafts of the husband on Kelly, Gonyngliam & Go,, which constituted charges against .the community, the plaintiffs have no claim therefor against the wife separately. My own opinion on this point differs from that of my brother Judges.

The attempt to garnishee the wife and render her liable for an alleged indebtedness to the community, finds no support in any of the principles of our law, applicable to the rights and obligations of married persons, or to the nature and character of the conjugal partnership. It is sufficient to say that the object of our law which confers upon a creditor who has a judgment against his debtor, the right of resorting to the process of garnishment, was to enable the creditor to exercise for his own benefit all the rights of action which the defendant in execution could exercise against his debtors, but that it certainty was not intended the creditor should exercise any greater right than his debtor hitnself could. The husband who is the judgment debtor in this case, has no right of action against his wife, during the existence of the community, for any sums of money which he may have expended for her benefit, either from his own separate funds or from the funds of the community, anl his wife cannot therefore be garnisheed, by either the individual creditors of the husband or by the creditors of the community.

It is equally clear that this suit cannot be maintained for an account of the community transactions, with a view to its liquidation, in order to establish an indebtedness on the part of the wife to the community, and thereby render her liable for the debt due to the plaintiffs by the community. Whether the community lb t'o be Viewed in the light of a legal entity or not, it is certain no suit can bo brought either by or against this ideal being. The husband is its sole representative during its existence, and the law has given him no power to provoke its dissolution, except by an action for separation from bed and board or for a divorce. The wife is not bound for the debts of the community, of which her husband is the head and master while that community subsists, and when it is dissolved she has the right by renouncing, of exonerating herself from the payment of any of its debts. 'Whatever right one of the spouses may have to claim a recompense from the other for funds of the community employed for the separate benefit and advantage of such spouse, either in the payment of his or her debts, contracted anterior to the marriage, or in the increase and improvement of the hereditary property of such spouse, this right can only be exercised at the dissolution of the community. The community under our laws consists only of acquets and gains, made during the marriage. They are liable to seizure for the debts contracted by the husband during the marriage, and the plaintiffs have a right to seize under their judgment against Davis any objects belonging to the community in possession of the wife. The buildings and improvements which have been erected on the wife’s plantation during the marriage aie not objects belonging to the communit}', to the extent to which, at the period of the dissolution' of the community, it shall be determined the wife’s land is then enhanced in value by these improvements, the husband or his heirs, will be entitled to the award of one half of such increased value, but at present nothing is done by the wife on that account, and it may be that on the dissolution and final settlement of the community hereafter, the wife may be able to offset any such claims, by claims that she may have against the husband for a similar improvement of his own hereditary property during the marriage.

It is therefore ordered and adjudged, that the judgment of the Court below be avoided and reversed, and that there be judgment in favor of the defendant Tennessee Robertson, with costs in both Courts.