text:
    Joseph A. Raguet v. Narcisse Carmouche.
    Where the verdict allows no interest, it is irregular for any to be allowed by the judgment entered on that verdict. But if the defendant does call the attention of the court to the error by a motion for new trial, the Supreme Court will not subject the appellee to the payment of costs on that account.
    APPEAL from the District Court of Pointe Coupée, Farrar, J. A.

      Provosty, for plaintiff.

      T. J. Cooley, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This case was before us last year, and the facts are fully stated in 5th Ann. 133. On the second trial there was a verdict in favor of the plaintiff for five hundred and seventy-seven dollars, and the court gave him judgment for that sum with interest from the judicial demand. The defendant has appealed; and the plaintiff asks that the judgment be amended in his favor so as to allow him the entire amount of his claim.

On the second trial, the plaintiff proved the submission to arbitration, which had not been legally proved on the former appeal, by examining the defendant on facts and articles; but as there has been no award in a legal form made by the arbitrator’s, we are unable to perceive how this proof can avail him. The value of the work must still be ascertained by the testimony in the record. This the jury have done; and we are not prepared to say that there is error in the verdict.

The defendant’s counsel alleges that the verdict allowed no interest, and that none should have been allowed by the judgment. He asks that it be changed in that respect. He did not bring that error to the notice of the district court by a motion for a new trial, or in any other manner. We cannot, under these circumstances, subject the plaintiff to the costs of the appeal by altering the judgment. Moreover, although the allowance of interest in the judgment, when the verdict allowed none, was irregular, it was a case in which interest ought to have been allowed, and the judgment has worked no injury to the defendant.

The judgment is therefore affirmed, with costs.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Joseph Jewell v. Thorn, McGrath et al.
    The payment of a portion of a judgment forms no ground for tailing out an injunction against an execution for the whole amount. The injunction should he confined to the amount paid.
    from the District Court of Pointe Coupée, Farrar, J. A.

      Provosty, for plaintiff.

      T. J. Cooley, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a case in which a defendant in execution obtained an injunction against the selling of his property* under execution, on the ground that a partial payment on the judgment had been made, which was not credited on the execution. An informality in the execution was also alleged ns one of the grounds for staying the proceedings. The district judge considered the grounds insufficient for enjoining the proceedings for the e’ntire amount, allowed the credit, and amerced the party and his security on the injunction bond in twenty per cent damages on the balance, under the statute.

We consider that there was no ground whatever for arresting the proceedings for the amount due on the judgment. It was the duty of the defendant in execution to pay that amount before he sought to obtain relief by way of injunction. Cobb and Wife v. Hynes, 4th Ann. 150. Morgan v. Driggs, 3d Ann. 125. Rowley v. Kemp, 2d Ann. 360. No damaages have been asked by the appellee for a frivolous appeal.

The judgment of the district court is therefore affirmed, with costs.


author: Preston, J.

text:
    Narcisse Carmouche v. Francis P. and L. Bouis.
    One of the defendants, the father of the other, directed his son to guard the sugar cane field from depredations of negroes, the field having been previously visited by such trespassers. While on the watch, the son saw a gang of negroes mounting the fence to enter the field. He fired, and wounded one of the negroes so that he died. Held,: That both father and son were liable to the owner for the value of the negro, and that it was immaterial whether the son took aim and intended to shoot the negro or not.
    Where the killing is necessary to prevent a felony, or to prevent the escape of the felon after the crime has been committed, the homicide may be justified under the legal authorities. There may also he cases of forcible trespass which would justify a homicide necessary for their prevention. But homicide is not justifiable to prevent mere misdemeanors, nor where it is not necessary for the defence of a person, or his family or property.
    from the District Court of Pointe Coupée, Farrar, J.

      A. Provosty, for plaintiff, contended:
    We are truly at a loss to conceive on what ground the defendants rest their hope of relief at the hands of this court.
    As he was not yet within the enclosures of the defendants, the killing of the slave could not be necessary for the defence of their persons, their family, or even their property and consequently was not justifiable. The verdict of the jury gave plaintiff the lowest estimate of the value of the slave, and the property of the slave in the plaintiff is established with certainty. Bibb v. Hebert, 3d Ann. 132. When Leon Bouis shot the slave, he was in the exercise of the functions in which he had been employed by his father, Francois P. Bouis; and to shoot him he made use of the gun which he carried by his father’s instructions; an(j jjje consequence of the discharge, whatever might have been the intention of the party, being the death of the slave, Francois P. Bouis, the employer, is answerable. C. C. art. 2299. Hart v. The New Orleans and Carrollton Railroad Company, 1 R. R. 181. Toullier, vol. ii, No. 284.

      Francois P. Bouis caused his son, Leon Bouis, to do an unlawful act, and after it was committed, far from disapproving him for it, only complained of his having aimed at one instead of firing at all: he is, therefore, liable in solido with him. C. C. art. 2304. Act of 1844.

      T.J. Cooley, for defendants,
    made the following points : 1. A person may lawfully beat another when necessary for the defence of his property, — 3 Black. Com. 131. , 2d Ann. 1020, — and may also kill, if necessary to its defence. 3d Ann. 132. 2. A private person is bound to arrest a felon, and if he cannot otherwise, may lawfully kill. 4 Black. Com. 293. 1 Chitty’s C. L. 17 and 18. 9 M. R. 221. 3. By the ancient laws, the killing of a person committing theft or robbery, in the night time, was lawful. Exod. xxii, 2. Potter’s Antiq. b. 1. c. 24. Laws of Twelve Tables, 1.1 and 7, j. ii. See also, Hale’s Pleas of the Crown, 488. See also, Puffendorf, L. of N. 1. 2. c. 5. 4. Admitting that plaintiff’s slave was unlawfully killed by Leon Bouis, in order to make F. P. Bouis, his father, responsible for the act, it must be shown that either he was a co-trespasser, aiding and assisting, or that the act was done by one in his employ, in the exercise of his functions ; and that it was done by negligence or unskilfulness ; and that the employer could have prevented it. It is alleged in the petition, that F. P. Bouis was a co-trespasser. There is not a particle of proof which goes to show that he knew when the act was done, or had ordered it. If done through the negligence and unskilfulness of Leon Bouis, was he in the exercise of his functions when he shot the slave ? If he was, could F. P. Bouis have prevented the act ? It is not even alleged in the petition, much less proved. C. C. 2299. 8 N. S. 503. 8 L. R. 537. 2d Ann. 406. Nullum crimen petitur is qui non prohibet; quum prohibere non potest. L. 109 de Rey. Jur. Culpa caret qui sit, sed prohibere non potest. L. 50, diet. tit. 5. If the wrong is done wilfully and maliciously, the employer is not liable. 18 L. R. 490.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff has instituted this suit to recover from the defendants in solido the value of his slave named John, killed by one of them, Leon Bouis, while in the service of his father, the other defendant.

The testimony shows, that in the latter part of September, 1849, the slave was in the act of crossing the fence of the defendant, Franeis P. Bouis, who is a sugar planter, probably for the purpose of taking sugar cane, and that there was one or more negroes with him. Leon Bouis, the son, with the overseer, were keeping watch with fire-arms, by direction of the father, he having before lost a considerable quantity of his cane. Leon Bouis fired, and the slave John was severely wounded in the leg, of which wound he lingered and died, notwithstanding all proper care was taken of him, and medical aid furnished.

The overseer and son were instructed by the father not to shoot the negroes they might discover trespassing on the fields, but to frighten them by firing ; and it appears the son did not take aim when he fired the fatal shot. Nevertheless, he called to the negroes to stop, and they not doing so, he did take aim, and would have fired a second shot, but the gun snapped. And, therefore, the counsel of the defendants has argued the case principally on the grounds that a person may lawfully beat another in defence of his property, and kill him, if necessary to its defence.

Whether the slave was wounded carelessly or intentionally, we cannot reverse the judgment under the circumstances of this case. On the supposition that the son fired without taking aim, and,' in pursuance of the instructions of his father, to frighten the negroes, he must have fired carelessly, and is responsible for the injury. Code, art. 2295.

If the injury was done intentionally by Leon Bouis, the question arises — which is always to be solved in such cases — was the wounding or homicide necessary to the defence of the property he was guarding.

The authorities quoted by the defendants’ counsel apply to the cases where the killing is necessary to prevent a felony, or when a felony has been committed-the escape of the felons cannot be prevented except by killing. In the present case, a trespass only was intended; the trespassers had not yet entered the field, and the least alarm would have driven them off. There may be cases of forcible trespass which would justify a homicide necessary to prevent it: as for example, in the defence of a man’s house, which is his castle, against a forcible entry so violent as to require this extreme resort. So, perhaps, of a trespass upon a man’s field to take by force his standing crop, putting the owner in fear. But in the case before us, the necessity to wound or kill, which a case of intended robbery may present, did not exist. Th,e cane the negroes were about tp take, is not of that class of things for which men commit a robbery, or take by putting the owner in fear. The trespassers intended to commit a misdemeanor, and not a crime.

Homicide is not justifiable to prevent mere misdemeanors, or even felonies without force, such as picking pockets. 1- Hall, 488. Thus, where a servant set to watch in his master’s garden at night, shot a person whom he saw going into his master’s hen-roost, it was holden that he was not justified in so doing, unless he had fair ground to believe his own life in danger. The King v. Scully, 1 Carrington & Paine’s Rep. 319.

The present case cannot be distinguished from that of Bibb and others v. Hebert, 3d Ann. 132, in which this court held that the killing of a slave in the act of committing a larceny, within the enclosures of the defendant, was not justifiable, because not necessary for the defence of the person, family, or even the property of the defendant, and that he was bound to pay the owner for the loss by reason of his death. Courts and juries, must limit the use of deadly weapons to cases of absolute necessity in defence of person or property. Any other rule would lead to an intolerable recklessness of human life.

Believing, with the jury, that the slave of the plaintiff was either carelessly or unlawfully killed, we think they came to the correct conclusion in holding both defendants responsible for the damage. It was imprudent in the father to direct the firing of the guns at all, even to frighten trespassers. It might and probably would have led to the use of fire-arms in return, and tended to lead to the shedding of human blood, instead of preventing it. Less dangerous means should have been resorted to, even at the risk of failing to detect and arrest the trespassers. Besides, the juiy may have inferred the previous assent of the father to the acts of his son while in his employ from his subsequent declaration, in substance, and with a full knowledge of the circumstances, that the sole reproach he had to make to his son was, for having fired upon one alone, instead of firing upon the gang.

The judgment of the district court is affirmed, with costs.


author: Rost, J.

text:
    Joseph Walsh v. Rene Arnous.
    By the act of 25th of March, 1813, defining the powers of police juries, they have the right-to determine how lands situated within the points on the Mississippi river shall be drained.

      from the District Court of Iberville, Burle, J.

      R. A. Upton, for appellant.

      Z. Ldbauve, for appellee.
   The judgment of the court was pronounced by

Rost, J.

The facts of this case are identically the same as those in the case of May v. Ransom, 5th Ann. 434.

The lands of the plaintiff and those of the defendant are situated on a point of the Mississippi river. The defendant, who is the owner of the inferior estate, has thrown up around it a levee which arrests the natural flow of the waters falling upon the plaintiff’s land. On the other hand, the plaintiff has opened drains upon his estate, which have the tendency to render the servitude due by that of the defendant more onerous.

The case was tried before a jury, and the plaintiff has appealed from the judgment in favor of the defendant upon the verdict.

We think the evidence sufficiently preponderates in favor of the plaintiff to justify us in changing the final judgment into a judgment of non-suit. As the case is before us, we could not, under the law, render a judgment in favor of the plaintiff without compelling him at the same time to close all his artificial drains. He would gain nothing by such a decree.

In dismissing the petition we again repeat what we stated in Ransom1 s case, that ample powers to settle this controversy to the advantage of both parties, are vested in the police jury by the act of 1813, further defining the organization and functions of police juries.

Police juries have the exclusive right under that law to determine how lands situated within the points on the Mississippi river shall be drained, without regard to their relative position as superior and inferior estates; and to apportion among the several proprietors the costs of the drainage.

It is therefore ordered, adjudged and decreed, that the judgment in this case be reversed, and that there be judgment in favor of the defendant as in case of non-suit. It is further ordered, that the costs of the district court be paid by the plaintiff; those of this appeal to be paid by the defendant.


author: Slidell, J.

text:
    Caleb Barstow v. S. Hiriart et al.
    It is not essential that the notary should embody in his certificate of notice of protest, a copy of the notice sent to the endorser, nor is it' necessary that he should state in the notice that the holder looks to the endorser for payment.
    from the District Court of West Baton Rouge, Burle, J.

      J. M. Brunot, for plaintiff.

      J. M. Elam, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The question presented in the argument of this case is, whether notice to the endorser, McCalop, is proved. The plaintiff offered at the trial, without any exception on the part of the endorser, a duly certified copy of the notarial protest, to Which was annexed, as usual, a copy of the note, followed by a certificate of notice, the whole forming a continuous notarial record, pursuant to the statute of 1827. The seventh section of that statute is in these words: “ All notaries or persons acting as such are authorized in their protests of bills of exchange, promissory notes, or orders for the payment of money, to make mention of the demand made upon the drawer, accepter, or person on whom such order or bill of exchange is given; and by certificate added to such protest, to state the manner in which any notices of protest to drawers, endorséis, or other persons interested, were served or forwarded; and whenever they shall have so done, a certified copy of such protest and certificate shall be evidence of all the matters therein stated.”

The certificate of notice, which, as we have said follows, in the notarial record, the protest and copy of the note, is in these words: “I, the undersigned notary, do hereby certify that the parties to the note, whereof a true copy is embodied in the accompanying act of protest, have been duly notified of the protest thereof, by letters to them by me written and addressed, dated on the day of said protest, and served on them respectively this day, in the manner following, viz: by depositing that for the first endorser, James MeCalop, in the post-office in this city, on the same day as this protest, directed to him 1 at Baton Rouge, Louisiana,’ and a duplicate deposited in same postoffice on the same day, directed to him ‘at his domicil in the parish of West Baton Rouge', Louisiana,’ and that for the last endorsers delivered to themselves.” The statute does not expressly require that the notary should embody in his certificate a copy of the notice sent or delivered to the endorser. The practice of the notaries almost universally under this act, has been, for more than twenty years, in accordance with the forms adopted by the notary in this case. We are not aware that its propriety has ever before been questioned; and even though we might be inclined, if the matter was res mora, to require a more detailed statement of the contents of the notice, we feel bound, at this late day, to approve a formula sanctioned by so long a practice and by the long concurrence of the courts and the profession.

It is said that even if the certificate is taken as proving that the letter or written notice sufficiently described the note and announced its dishonor, the notice was still defective; inasmuch as, according to the certificate, it notified the endorser of the protest of the note, but does not expressly appear to have informed him that the holder looked to him for the payment of the note. Authorities may be found in the books in support of this objection ; but we consider it as now well settled, that the holder’s intention to look to the endorser may be presumed, and be considered as notified by implication from the notice of protest, when that notice is in other respects sufficient. This point was considered in the case of The Bank of the United States v. Carneal, 2 Peters, 553. The court said: “ A suggestion has been made at the bar that a letter to the endorser, stating the demand and the dishonor, of the note is not sufficient, unless the party sending it also informs the endorser that he is looked to for payment. But when such notice is sent by the holder or by his order, it necessarily implies such responsibility over. For what other purpose could it be sent? We know of no rule that requires any formal declaration to be made to this effect. It is sufficient if it may be reasonably inferred from the nature of the notice.” See also Furze v. Sharwood, 2 Adol. and Ellis, N. R. 388. Story on Notes, § 353. Warren v. Gilman, 5 Ship. 360.

Judgment affirmed, with costs.


text:
    James D. Denegre v. S. Hiriart et al.
    It is not essential tliat it sliould appear from the notary's certificate of notice of protest, that the notice was addressed to the endorser on the face ofit. It is sufficient if the name and address of the endorser be written on the outside of the notice addressed to him.
    It is sufficient, if the notice of protest states that the note has been protested, without stating that it was protested after due demand.
    The omission to state in the notice of protest the date of the maturity of the note is not material, when it is not shown that the endorser had endorsed other similar notes, and there is no reason to believe ho was left in any doubt as to the note which was protested.
    APPEAL from the District Court of West Baton Rouge, Burk, J.

      J. M. Brunot, for plaintiff.

      J. M. Elam, for defendants.
   The judgment of the court .was pronounced by

Slidell, J.

McCalop was sued as the endorser of a promissory note for $1500, made by Hiriart, dated West Baton Rouge, March 31st, 1848, and payable twelve months after date at the Branch of the Union Bank at Plaquemine, which is a town in the parish of Iberville. It was duly presented, and protested at maturity for non-payment; and a notice, addressed to McCalop, at the proper place, was mailed on the following day. It does not, perhaps, clearly appear from the notarial certificate, whether the letter was addressed on its face to McCalop, or not; but it is quite clear, from the certificate, that his name and address were on the outside of the letter, and that was sufficient.

There are some other objections to the notice; before considering which, we will give its words. It was as follows : “ Take Dotice, that a promissory note for the sum of fifteen hundred dollars, signed Hiriart, dated West Baton Rouge, March 31st, 1848, payable to the order of James McCalop, Esq., and by you endorsed, has been by me this day protested for non-payment, and the holder of said promissory note looks to you for the payment thereof as endorser. Parish of Iberville, 3d April, 1849. L. Petit, Recorder.”

The notice, aided by its superscription, sufficiently points to McCalop as endorser of the note. The expression, “ has been by me this day protested for non-payment,” is, in our opinion, sufficient, without stating in express terms that presentment for payment had been made. See Stockton v. Collins, 9 Carr. & Payne, 653. King v. Bickley, 2 Adol. & Ellis, New R. 419. Story on Notes, § 352.

It is also objected, that the notice does not state at what time payment was due. But in the absence of evidence that McCalop had endorsed any other note of Hiriart, there is no reason to believe that any doubt was left in his mind as to the dishonor of the note in question. See Mills v. Bank of United States, 11 Wheaton, 431. Story on Notes, § 349.

The judgment of the district court is therefore affirmed, with costs.


text:
    Ira Smith et al. v. Francis M. Hereford.
    An act of the Legislature authorizing the police jury of a parish to pass all such ordinances ^as they may deem necessary relative to roads and levees, does not authorize them to pass ordinances relative to the manner in which debts are to be collected, or to supply a summary process for the collection of debts.
    APPEAL from the parish of West Baton Rouge, Burle, J.

      T. G. Morgan, for appellees.

      J. M. Brunot, for appellant.
   The judgment of the court was pronounced by

Rost, J.

A requisition was made upon the plaintiffs by the inspector of roads and levees of the ward in which they reside, for slaves to work on the levee in front of a tract of uncultivated land belonging to the defendant, who is a non-resident.

The labor was furnished, and the plaintiffs obtained from the inspector certicates showing the respective amounts they had a right to claim from the defendant for it, under the police regulations of the parish.

The plaintiffs made an amicable demand of these amounts from the defendant, and on his failure to pay, they applied for jointly and .obtained an order of seizure and sale against the land on the bare certificate of the inspector.

The defendant enjoined the proceeding on the following grounds : 1. That no law authorizes summary process in the case. 2. That the police jui-y was not competent to regulate, or in any manner to direct, the forms of judicial proceedings, and to extend the powers of courts. 3. That the inspector’s certificate is not an authentic act, and cannot be the basis of executory process. 4. That it is not alleged or shown that the defendant was previously notified to work on his levee.

The district judge dissolved the injunction, and gave judgment against the plaintiffs as in case of non-suit. They have appealed.

The ordinances of the police jury, under which executory process issued, were passed in the exercise of power supposed to have been granted by an act of the Legislature passed in 1831, repealing the act of 1829 relative to roads and levees, so far as it was in force in the parish of West Baton Rouge, and authorizing the police jury of that parish to pass all such ordinances as they may deem necessary relative to roads and levees.

The powers delegated by this law are purely administrative. The police jury may pass ordinances relative to roads and levees; but when, under those ordinances, indebtedness is incurred by planters, the debt must be sued for as other ordinary debts, unless the Legislature has given a summary remedy. This is one of the many inconveniences resulting from the repeal of the general law relative to roads and levees.

The plaintiffs have asked judgment as in an ordinary suit, but they made no application in the court below to change the proceedings from the via executiva to the via ordinaria, and the defendant had not the opportunity to avail himself of the, means of defence he may have. Moreover, the ordinance of the police jury cannot make the receipt of the inspector evidence ; the inspector himself should have been examined as a witness.

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


text:
    John Moreau v. Villeneuve Blanchard.
    Where the plaintiffhas kept his accounts and given receipts so carelessly that it is impossible to ascertain with certainty the amount due to him, the judgment of the district court giving him less than he claims will-be affirmed.

      APPEAL from the District Court of West Baton Rouge, Burle, J.

      William Gil, for plaintiff.

      Andrew S. Herron, for defendant.
   The judgment of the court was pronounced by

Preston, J.

This suit has been instituted to recover the balance of an account for clothes furnished the defendant and others, whose accounts he assumed. Five receipts were offered in evidence by the defendant, without any bill of exception taken as to the admissibility of any of them. The aggregate amount of these receipts being deducted from the plaintiff’s account, reduces the balance below the amount allowed by the district court; but it is palpable that the price of some articles of clothing furnished has been receipted for twice. The plaintiff has kept, and rendered his accounts and given receipts so carelessly, that it is impossible for us to ascertain the exact state of the account between the parties. It was his duty to keep his accounts in such a manner, and to furnish such evidence as would have enabled the court to fix with certainty the exact amount due to him by the defendant. He has not enabled us to know that the district court erred in reducing his claim to the amount allowed him.

The judgment of that court is therefore affirmed, with costs.


text:
    Miles Bristow v. Administrator of Isaac Erwin.
    Where a receipt is signed with the name of a firm of country merchants by their clerk, who signs bis own name immediately below the name of the firm without using the word “by" or “per,” it may be implied from circumstances, that the clerk signed the name of the firm as their agent.
    An unliquidated demand cannot compensate one that is liquidated.
    APPEAL from the District Court of Iberville, Burk, J.

      J. J. Berry, for plaintiff.

      Deblieux and Taylor, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff sued for $120, the amount of a draft accepted by Isaac Erwin, deceased, due on the 1st of March, 1844; and for $380 09, the balance of a store account commencing in August, 1843, and ending in October, 1844. But it is evident by inspection of the account, that this balance is made by charging the draft and $9 60 interest upon it.

The defendant plead tire receipt of the plaintiff’s clerk for $550 in money, in compensation of any claim the plaintiff might establish against him. The receipt and signatures are in the hand writing of Joseph Christy. It was signed, Bristow Co., and under the name of the firm in the signature of Joseph Christy, the clerk. It was objected to the receipt, that Christy did not purport to have signed it for the firm, but as principal or security, and that the signature of the firm, not being genuine, was not binding upon them. The district court rejected it as evidence; and the defendant excepted.

It is proved, that Christy was, at the date of the receipt, the clerk of Bristow Sf Co., and continued so until his death, some months afterwards. There is no suggestion that he was a man of bad character or capable of committing a forgery. His signing the name of Bristow 8f Co. to the receipt, was certainly signing it for them. Signing his own name below was to give the signature of his principals authenticity to the extent of his moral and pecuniary responsibility. It certainly would have been more proper and conformable to usage to have inserted the word by or per, or other words showing expressly the agency of the clerk; but that was not essential. The agency may be implied from circumstance's, as conclusive as though it had been expressed in the receipt.

Bristow Co., as appears by their petition, had dealings with Erwin. They held an accepted draft and claimed a store account against him. It does not appear that the clerk had any dealings with him, which alone tends to show that the money was received as agent for his employer, and not for him. They being country merchants, and he their clerk, indicates the same thing.

There is another circumstance which is conclusive. In the body of the receipt it was expressed, that $150 of the money should be applied to a judgment sold by C. M. BrisMll; seven days afterwards an execution, issued on a judgment of C. M. JDriskill against Isaac Erwin, was returned credited with this sum. The attorney of the plaintiff testifies, that a son of Erwin subsequently satisfied the balance of the judgment, deducting the $150 received by Bristow according to the receipt dated the 4th of January, 1844; and that it is his impression that the payment of the first $150 was received by Bristow from money in hand belonging to the defendant.

A transfer in writing of the judgment from JDriskill to Bristow 8f Co. was made, but without date. It is clear, it was transferred before the receipt of the $150; because in the receipt it is expressed tliat $150 is tó be applied to a judgment sold by C. M. Eriskill. Therefore, the clerk received that part of the money from Erwin in payment of a judgment held by Brislow Sf Co. against him, and Brislow, in the final settlement of the judgment, ratified the receipt. The transfer of the judgment is fixed about the date of these transactions because it was made to the firm of Bristow Sf Co., and this firm was dissolved in 1844, by the death of Crane, the partner, within eight days of the time the clerk, Christy, died.

We have no doubt, from all these circumstances, that Bristow Co. appropriated the $150 of the money received by their clerk to the judgment they had purchased from Eriskill, and kept the balance in extinguishment of their account against Erwin, including the accepted draft which they held; and we know of no rule of evidence which should have excluded the clerk’s receipt in the name of the firm, in connection with all these circumstances to establish the true state of the claims of the parties. From this receipt and circumstances, we are satisfied the whole claim of the plaintiff has been extinguished by compensation or payment.

The claim of the defendant on account of boarding and clothing two servants of the plaintiff, was unliquidated, and therefore cannot be compensated against the draft and claims of the plaintiff, and are now prescribed.

These views of the case would show a small balance of about $20 in favor of the defendant; but the transactions of the parties are so ancient and the accounts of them kept so loosely, that we would be much inclined simply to render judgment for the defendant against the demands of the plaintiff, in order to close their litigation.

The receipt, however, having been excluded from the consideration of the jury, and it being possible that the plaintiff may have something to offer against it, in conformity to the uniform practice, we are compelled to remand the case, with directions to the district court to admit the receipt offered by the defen* dant in evidence.

The judgment of the district court is reversed, at the costs of the plaintiff, and the cause remanded for further proceedings according to the views we have expressed.


text:
    N. K. Knox v. John Buhler.
    The notary’s certificate of notice of protest should show on what day the notice was deposited in the postoffico.
    APPEAL from the District Court of West Baton Rouge, Burle, J.

      J.M. Elam, for plaintiff.

      G. S. Lacey, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

It does not appear from the copy of the notarial certificate of notice, offered in evidence in this cause, on what day the notary deposited the notice for Buhlcr in the postoffice. We are, therefore, unable to say whether the mailing was timely.

It is therefore decreed, that so much only of the judgment of the district court as. condemns the defendant to pay the sum of five hundred dollars, with ■interest at eight per cent per annum from the 15th day of January, 1849, until paid, and five dollars costs of protest, being the amount of principal and interest, and costs of protest of the note of A. Duvall, by defendant endorsed, of record in this cause, be reversed; and that as to said note, there be judgment of non-suit ; the costs of this appeal to be paid by the plaintiff. It is further decreed, that in this respect the judgment of the district court be affirmed.


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    Rosette Aubert, f. w. c., et al. v. Justin Aubert et al.
    A testament is without effect until it is proved and the execution of it ordered. A will proved in the court of probates, but not ordered to be executed, can have no legal effect, and cannot be the basis of prescription. C. C. 1637, 3507.
    The admission of a will to probate and the order to record are not judgments binding on the heirs even if they were present or duly cited.
    Testaments are more easily avoided than contracts, on the ground of unsoundness of mind. They may he avoided although the insanity was not notorious and an interdiction was not applied for, even where more than thirty days elapsed between the time of making the will and the testator’s death. C. C. 1781, secs. 6 and 10.
    A will made hy an insane person during a lucid interval is valid. C. C. 1781. But a lucid, interval in the sense of the law, is not an apparent tranquility or seeming repose. It is not asimple diminution or remission of the disease, but is a temporary cure: an intermission 'so clearly marked that it perfectly rosemhles a return of health, and must have continued for a length of time sufficient to give certainty to the temporary restoration to reason.
    APPEAL from tlie District Court of Lafourche, Randall, J.

      C. Belcher and J. C. Beatty, for appellants.

      J. L. Cole and B. G. Thiboudeaux, for appellees.
   The judgment of the court was pronounced by

Rost, J.

Rosette Aubert, a free woman of color, in her own right and as tutrix of her minor children, asks that the heirs of Pierre Aubert, be compelled to execute his will and to pay over to her the legacies it contains in her favor and in favor of her said children. Marguerite Aubert, one of the heirs, has joined in the prayer of the petition for the execution of the will, and claims from her co-heirs the legacies made to her. All the other defendants have pleaded the general issue, and have further averred: 1. That the will has never been rendered executory or ordered to be executed. 2. That Pierre Aubert was not of sound mind at the time he made it. 3d. That the will is void for defects of form. 4. That Rosette Aubert was the concubine of the testator, and her children are his adulterous bastards; that they can neither inherit by will nor sue for alimony, and that their mother is without capacity to take under the will, being reputed in law a person interposed.

The case was tried before a jury, who found a general verdict in favor of the defendants. Rosette Aubert and Marguerite Aubert have taken separate appeals from the judgment rendered on the verdict.

The plaintiffs have pleaded, in this court, the prescription of live years in bar of the causes of nullity of the will set up by the defendants. The defendants having waived their right to have the cause remanded under art. 902, C. P., this question will first be examined.

Pierre Aubert died in October, 1839. On the 20th November of that year, his will was probated and ordered to record. At that stage of the proceeding the heirs of age protested against its execution, on the grounds now set up by them in defence. After this protest, no order was made for its execution; the executor did not apply for letters testamentary, and the legatees set up no claim until this action was instituted on the 24th of- March, 1849.

Art. 1637, C. C., provides that a testament is without effect until it is proved and the execution of it is ordered. This principle was recognized in the case of Stewart's Curator v. Row, 10 L. R. 530 ; in which it was held, that a will proved in the court of probates, but not ordered to be executed, can have no legal effect. We re-affirmed this decision in the case of Marcus v. Barcas, 5th Ann. 265. The will having to this day remained without effect, cannot be the basis of prescription. It follows also from the same principle, that the prayer of the petition should have been for a decree making the will executory. No exception, however, having been taken in limine litis to the form of the action, we will proceed to decide the case on its merits, premising that the admission of the will to probate and the order to record, are not judgments binding upon the heirs, admitting them to have been present or duly cited. Robinet et al. v. Verdun's Heirs, 14 L. R. 542. Sophie v. Duplessis et al., 2d Ann. 724.

In consequence of the generality of the verdict' and of the neglect of the parties to call upon the judge to charge the jury in relation to the questions of law which the issue presents, there is some uncertainty as to the ground upon which the jury decided. It is clear, however, that the verdict is not based upon the ground of concubinage; because that ground could not affect the rights of Marguerite Aubert. There is no reason to believe that the verdict is based upon informalities in the will, because no material informality has been shown; and the ground that the action could not be maintained until the execution of the will had been ordered, should have been pleaded as an exception, and was not properly before the jury. The only ground of defence remaining is, the unsoundness of mind of the testator at the time he dictated the will. And in relation to this ground, our attention has been called to several bills of exception taken by the defendants during the trial.

The will purports to be a nuncupative will under private signature, and was written by Joseph Nicolas, who signed it as a witness. He was first introduced as a witness in the cause by the plaintiffs. He was then recalled by the defendants, and testified that Aubert had some difficulty in stating the names of the slaves he wanted to donate, and that he did not remember the names of some of them, and that Rosette, the present plaintiff, assisted him in ascertaining the names of such of the slaves as he did not remember. This part of his answer was objected to, on the ground that it was an attempt to introduce proof of suggestion in violation of art. 1479 of the code. The court sustained the objection, and ordered the evidence already taken down to be erased. The defendants’ counsel reserved the point by a bill of exceptions.

The same witness was subsequently asked, whether, when he was writing the will, the testator could recollect the dispositions he had made verbally without their being repeated to him by other persons; he was also asked whether the testator was capable to dictate, in succession, the different dispositions of bis will as they had been written, without the assistance of another person. There are bills of exception to the opinion of the judge refusing to receive this evidence, on the ground that it tended to prove suggestion.

We are of opinion that the bills of exception were well taken, and that the evidence should have been admitted. The issue was not that the testament of a person of sound ndnd had been made under tho influence of suggestions from other persons. The only object of the evidence offered was to show the unsoundness of mind of the testator; and it appears to us the best which could have been adduced for that purpose. Evidence is admissible or not, according to the object for which it is offered. As a general rule, for instance, parol evidence is not admitted to contradict written contracts, but it is admissible when fraud is alleged by one of the parties to them. We do not, however, think it necessary to remand the case to obtain the answers of this witness to the questions put to him.

We concur in the position taken by the defendants’ counsel, that testaments are more easily avoided than contracts, on the ground of unsoundness of mind. They may be avoided, although the insanity was not notorious and the interdiction was not applied for ; and when they contain, in themselves, evidence of insanity in the party, tho law pronounces their nullity, although more than thirty days elapsed between the time of making them and the death of the testator. Contracts are never avoided in this manner. C. C. art. 1781, ¶ 6 and 10. This difference has its source in the consideration, that laws regulating the capacity to contract are in furtherance of the natural rights of man, and that all restraints upon that capacity are abridgments of his liberty. But all his rights die with him. The disposal of his property by will rests purely on arbitrary legislation, and is in derogation of the general laws regulating the devolution of property. Society cannot exist without the capacity to contract; but the power to dispose of property by will is not necessary to its well being.

The case under consideration is not one of insanity, properly so called. The derangement of intellect of the testator is alleged to have been the result of disease, and comes within the rule so beautifully expressed in the Roman Digest, “ In adversa corporis valetudine mente captus, eo tempore testamentum facera non potest,” which forms in part the subject matter of art. 1782 of our code: “A temporary derangement of intellect, whether arising from disease, accident or other cause, also creates an incapacity pending its duration, provided the situation of the party and his incapacity was apparent.” Digest qui test, facera possunt, 1.17,

It is necessary to keep in view this distinction, as it has an important bearing upon the law applicable to the case. The question is, were the situation of the testator and his incapacity apparent at the time ho made his will ?

The evidence presents Pierre Aubert to us as suffering under a fearful external disease, spreading gradually over all parts of his body, and discloses the effect of it upon his mind, as it increased in intensity, and he felt more and more that the hand of death was upon him. The man of warm affection and convivial tastes; quarrelled with his friends without apparent cause ; became uncommonly versatile in his affections, and secluded himself by degrees from all society. As the disease ascended towards the head, he gradually lost his sight and his memory. We see him in his last visit to his sugar house; and the witness who speaks of this visit seems to be surprised that he could still see him and call him by his name. We then lose sight of him for three weeks; and at the end of that time find him in bed, completely blind and making a will, which Joseph Nicolas is writing from the notes he has taken of the dispositions it is to contain. At that time, says Nicolas, the disease had so far progressed that the spine, neck and back part of the head were entirely covered with sores, which appeared to be in a state of gangrene. He seemed to suffer a great deal; his pulse indicated fever, and when he commenced to dictate the dispositions of his will, he was in a state of great agitation. His sight was entirely gone, and he no longer remembered the names of some of his slaves who had been around him and had served him ail their lives. After he had once stated the dispositions he wished to make, and they were repeated to him by Nicolas before writing them in the will, he no longer recognized them, and attempted to bequeath slaves which he had already donated. From what passed, this witness has stated that he did not believe Aubert remembered the dispositions he had made or could have repeated them two hours after they were written.

In further proof of the alleged unsoundness of mind of the testator, it has been shown, that he ordered the fire to be put out in his room, because the heat and smoke incommoded Nicolas when he was writing the will, while the day was pleasant and there was neither fire nor smoke; that although he had always been much attached to his eldest son, he said he bequeathed to him an old hoe and an old spade, because he was a good fellow; "that he disposed, by his will, of a slave which, to his knowledge, did not belong to him; that he made Marguerite Aubert, then about thirteen years of age, the depositary of $5000 for the use of the plaintiff and her children, and at the sanie time appointed a tutor to her; that he gave her household furniture, carriage and horses, but forgot that he intended to give her $5500; and upon this being suggested to him after the will was signed, he caused a bequest to her for that sum to be written at the bottom of it.

Another fact has been shown, more conclusive than any of the others. Nicolas had taken a memorandum of the dispositions which the testator desired to make and was writing the will. Mr. Folse, one of the persons called as a witness, came into the room and saluted the testator in a loud voice; Aubert did not recognize or notice him. Several persons in the room then told him, Mr. Folse speaks to you; but he made no reply, and appeared to be in a somnolent state. The witness left the room and was called in after the will was ready for signature. He states, that when the testator signed he appeared to be suffering very much, and that he did not seem quite aussi assoupi as when he first went in. Physicians of experience have testified that -this state of stupor was the result of the disease of the testator, and that after the loss of sight and of memory, the stupor was an unerring sign of approaching dissolution.

These are the facts upon which a jury of the neighborhood, the members of which could not well be deceived as to the real situation of the testator, came to the conclusion that he was mense captus inadversa corporis valetudine. This testimony stands unimpeached and uncontradicted; and there is no doubt that more conclusive evidence might have been had if the plaintiffs had not delayed their suit until after the attending physician of the testator had been accidentally killed.

On behalf of the defendants, some of the witnesses to the will say that Aubert appeared to be of sound mind when he signed; and his overseer has stated that his mind appeared to be sound before, at the time, and for several days after making his will, and that he expressed his satisfaction at having made it, as it was his wish to give Marguerite more than his other children. It is strange that if such was his deliberate purpose,- that he should have forgotten it at the time he made the will.

This witness states that a person who was present at the making of the will, told him that the testator was not of sound mind; and on his cross-examination, he, himself, testifies that Aubert seemed to be sufficiently awake to understand what he was doing when he signed the will, thus throwing doubt upon his capacity. We are satisfied that the jury formed a proper estimate of the testimony of this witness.

It was urged in argument, that although the mind of the testator may have been to some extent affected by disease, it is proved lliat there was no delirium when the will was signed by him, and that he was in a tranquil state of mind when he presented it to the witness; or, in other words, that if the habitual state of the testator was one of unsoundness of mind, he made the will and signed it in a lucid interval, and thntis sufficent for its validity.

Art. 1781 of the code provides, that a will made by a person insane during a lucid interval is valid; and as the code no where tells us what a lucid interval is, we must resort, for the meaning of that expression to the system of jurisprudence in which it was first used.

A lucid interval, under the civil law, is not. an apparent tranquility or a seeming repose. It is not a simple diminution or a remission of the disease, but a temporary cure : an intermission so clearly marked that it perfectly resembles the return of health; and as the nature of the interval cannot be ascertained in an instant, it must, continue during a length of time sufficient to give the certainty of the temporary restoration of reason. That time must, in all cases, be considerable.

The law, 6 Digest, de curat, fur. laid down the rule and required intervalla perfectissima, ut in quibusdem videatur etiam pené furor esse remotus. See also 1.18, § 1, Digest de acq. vel amitt. pos., and 1. 9, furiosum cod. qui testamenta facere possunt.

It is easy, after this, to distinguish between a sane act and a lucid interval, and to answer the plaintiffs’ argument, that after the will was made, reasonable things had been done by the testator. There never was a case of insanity in which some reasonable action was not shown. But a wise act never proved the habitual wisdom of its author. The act is instantaneous, while the interval is a state of being made up of a series of acts. It is evident that there was in this case no remission of the disease of sufficient duration to constitute a lucid interval ; and that whatever may have been the outward appearances, there could be, in fact, no remission at all, as long as the disease which caused the derangement of mind continued to increase in violence. But'if there had been an interval of apparent reason, it seems that under the civil law this was not a species of insanity in which lucid intervals are presumed.

The Roman jurisconsults distinguished two classes of insane persons; one class they called furiosos, the other mente capios. We have already shown that the insanity of the testator was of the latter class. All the Roman laws which speak of lucid intervals have exclusive reference to the first class. No law mentions them with reference to mente capti. For instance, the law, 39 Digest de judiciis, authorized the insane of the first class to discharge judicial functions during lucid intervals. But this was never permitted in cases of simple insanity. Before Justinian, the sons and daughters of the mente captus could marry without his authorization. But the children of the furiosus were not dispensed from obtaining it, because the law presumed lucid intervals during which it might be given. The reason of the distinction is, that with the furiosus the fits and intervals were easily perceived, while in cases of simple insanity they are hardly perceptible. The definition of the mente captus is qui nullum extriusecus ostendit furorem,qui habeffurorem latentem, — the furor that dwells within without giving external signs. Dumoulin, comment, on the code, title qui testamenta facera possunt.

We are satisfied that the testator was not of sound mind at the time he made his will, and that the verdict and judgment are in conformity with the law and evidence.

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


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    Martial Verret et al. v. Celeste Belanger, Widow of Tanner.
    Where the widow causes the community property to be adjudicated to her, and assumes the payment of the debts of the community, she cannot escape liability therefor upon the ground that she was ignorant of the debts she thus assumed.
    The judgment against the principal is pi'ima facie evidence against the surety ofthe amount due by the principal, subject to be inquired into and corrected on proper allegations, supported by legal evidence.
    Where the surety offers in evidence an account made out by the principal, the surety assumes the correctness of the account, and cannot be allowed afterwards to dispute it.
    Prescription does not run against minors, except in certain cases specified by law. C. C. 3505, 35L9. ’
    Where a dative executor sold property for notes which did not mature until his appointment expired, he is still bound to account for the notes so received; and if he does not, his surety is liable for tlieir amount.
    APPEAL from the District Court of Terrebonne, Randall, J.

      Winchester Hall, for plaintiffs.

      J. C. and A. Beatty, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

In 1835, L. H Ferret was appointed dative testamentary executor of the will of Jacques Ferret, and gave his official bond, with Lemuel Tanner as his surety. The condition of the bond was, that he should well and faithfully discharge the duties of his office, and render a true and just account of whatever money or property he might receive in liis official capacity, and pay over to the legitimate heirs of the deceased whatever balanco he might be owing to them whenever legally required so to do. This action is brought by Martial and Jean R. Verret, two of the heirs of Jacques Verret, to recover from the widow of Lemuel Tanner their shares of the estate of their father. They allege that they had brought suit against the dativo executor for a settlement of his accounts, and had each recovered a judgment against him for $685 14, with interest from October, 1847, and had failed to collect upon execution issued. That the widow of Tanner, who was liable as surety, had assumed the payment of all his debts.

The answer of Mrs. Tanner, after a general denial, avers that the executor rendered an account of his executorship in September, 1835, showing the shares of the plaintiffs to be $652 30. That from that date the tutrix of plaintiffs was in default for not enforcing payment; and the claim is barred by the lapse of ten years. That the plaintiff's had only a right of action against their tutrix. There was also a plea, that the executor, with tbe consent of the tutrix, had expended a large amount for their education, which extinguished or reduced their claim against him. There was a verdict and judgment in favor of the defendants. The plaintiffs have appealed.

The first inquiry is, whether Mrs. Tanner has rendered herself liable for any amounts that may be due by the estate of Tanner upon the bond. Upon this point we find no difficulty. After the death of Tanner, in 1842, the property of his succession, with an inconsiderable exception, was adjudicated to her as widow in community; and an act was signed by her and her children, in which she agrees to pay all the debts due by said estate out of her own funds. Having taken possession of the property of the succession, and that too, under a promise to pay all its debts, the creditors of the succession have clearly a right to look to her, as the recipient of the fund which was bound for their claims. It is said that the liability upon this bond was unknown to the widow and heirs when the community was adjudicated to her and she assumed its debts. We do not consider that ignorance, if it existed, as effecting the rights of creditors, whatever equity may grow out of it as between her and the heirs.

The plaintiffs offered in evidence the proceedings for accounts, and the judgment obtained against the executor, to prove the amount of the liability of the principal in the bond ; but the court, on the objection of the defendant, admitted it merely to prove rem ipsam. In this, we think there was error. The judgment against the principal should have been received against the surety as prima, facie evidence of the amount due by him as executor, subject to be inquired into and corrected on proper allegations, and by legal evidence. See, Canal Bank v. Brown, 4th Ann. 548.

In consequence of this ruling in the court below, we should have considered it our duty to remand this cause, were it not that the defendant lias offered evidence which enables us to sustain, with the exception of a trifling amount, the claim of the plaintiffs. This evidence is an account prepared in September, 1835, or thereabouts, by the executor, and which exhibits the amount due to each of the plaintiffs as $652 30, being a few dollars less than was awarded by the judgment against the executor. The defendant offered this for the purpose of showing that, in 1835, the executor had accounted to the tutrix, and a right of action then arose in her favor for the benefit of her wards. Having thus used this account as a means of defence, they have assumed its correctness, and cannot consistently gainsay it.

The question then presents itself, how far the alleged rendition of account in 1835 affects the plaintiffs. It was handed to the parishjudge having jurisdiction of the succession sometime in the fall of 1835, but was unaccompanied by any petition, and no judicial action was had upon it. The tutrix, it appears, was informed of the fact that the account had been delivered to the parish judge. Assuming that the tutrix might then .have demanded from the executor the amount acknowledged to be due the minors, or at least, as a preliminary to such recourse, have oblained judicial action on the'account,' did her failure to do so permit the commencement of prescription from that date in favor of the official surety? We think not. The plaintiffs were minors. Minors cannot be prescribed against, except in the cases provided by law. C. C. 3488. The rule is reiterated in article 3519. That, in general, the fact that the minor is represented by a tutor or tutrix capable of bringing suit in his behalf, does not obviate the suspension of prescription, is evident from article 3505, in which a prescription of five years is established for a particular class of debts; and it is expressly declared that it runs against minors, reserving to them their recourse against their tutors. In the article 3519 it is said, prescription does not run against minors and persons under interdiction, except in the cases specified above. In deciding, however, the case before us, we are Hot to be understood as saying that there are no cases in which prescription runs against a minor represented by a tutor, without a specific provision to that effect.

It was said by the appellee, that the bond was dated in 1835, and expired on the 3d July, 1846, by force of the article 1199, C. C. The argument seems to be, that as, under the then existing law, a dative executor was appointed for a year, he was functus officio at the end of that time, and if his appointment was renewed, was required to give new security. What, under the then existing law, would be the liability of a surety for property coming into the hands of a dative executor after the expiration of the year, wo need not determine. The surety is undoubtedly chargeable for property which came into the executor’s hands during the year. Such was the case here. It is true, that a portion of the proceeds of sale which came into the oxeentor’s hands was represented by notes, which did not mature until after the expiration of the year; but that did not relieve the surety, his principal not having accounted nor delivered to the heirs either the notes or their proceeds. The condition of the bond was, that he would faithfully discharge his duty as executor, and pay over to the legitimate heirs whatever balance might be owing to them.

With regard to the amount expended by Verret for the education of his brothers, however proper in point of morals it might be, that they should credit it upon their claim against him, we are constrained to say, that they are under no legal obligation to do so. Verret was not the tutor of the plaintiffs. It is proved that he undertook to send them to school from motives of brotherly affection and duty ; paid for their education out of his own funds ; and did not anticipate a reimbursement of these expenditures, which were intended by him to be gratuitous.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed; and that there be judgment against the said defendant in favor of fhe plaintiffs, Martial and Jean R. Verret, each for the sum of $652 30, with interest from Oct. 9th, 1847, till paid, and-costs in both courts.


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    Guion, Beck et al. v. John A. Brown.
    Privileges aro stricti juris, and only to be allowed in cases expressly provided for by law. C. C. 3152.
    Where a person employs a clerk by the year, and during the year causes that clerk to post np the hooks of another commercial house, he has no privilege upon the effects of that commercial bouse for the services of the clerk. The clerk himself has no privilege, because he was not employed by that house. The employer has no privilege, because he was not a clerk.-
    APPEAL from the District Court of Lafourche, Randall, J. This case arose from an opposition claiming a privilege upon property attached by M. I-L Raunis.

      J. C. and A. Beatty, for appellant.

      Winchester Hall, for appellees.
   The judgment of the court was pronounced by

Slidell, J.

Several creditors of Brown having attached his property and obtained judgment, levied their executions upon the contents of a drug shop kept by him. Raunis then filed a claim of privilege. The privilege claimed is that accorded by the article 3158 of the Civil Code “ for the salaries of clerks, secretaries and other persons of that kind,” and which is also spoken of in articles 3181 and 3219. There was judgment in favor of Raunis in the court below; and the other creditors have appealed.

The claim of Raunis arose as follows : Raunis had employed Joseph Nicolas since the year 1848, and he was still in the employ of Raunis at the time of the trial of this cause in September, 1850. The nature of his employment is thus stated by Nicolas, in his examination as a witness for Raunis in this cause. “The nature of deponent’s contract with Mr.Raunis was, that deponent would do any work as bookkeeper required by Mr. Raunis. This included not only Mr. Raunis’ own bookkeeping, but also what he, Mr. Raunis, would procure from other houses. Mr. Raunis requested deponent to do some bookkeeping for John R. Brown. Deponent posted up Mr. Brown’s books from March, 1849, to January, 1850, and made the accounts up to March, 1S50, from March, 1849. Had deponent undertaken the work for himself, he would not have charged less than two hundred and fifty dollars.” Cross-examined on part of plaintiffs in execution: “Air. Raunis owns a plantation; but lives in this village. Mr. Raunis has not been a clerk to deponent’s knowledge since he, deponent, was in his employ. He posted up Mr. Brown's books by intervals. He took the books, he believes, in September; but the posting was behindhand since March, 1850. He always took the books to post them at his house, or at Silvain Raunis’ store. No part of the compensation coming from this work done for Mr. Brown, is to be given to witness. Witness is a notary public and surveyor. At the same time he was posting up the hooks of Mr. Brown, he was also posting the books of the firm of S. T. and L. Raunis. He looks exclusively to Mr. Raunis for the payment of his labors in posting the books of Mr. Brown, and this on his yearly contract for his services as above mentioned.”

It is obvious, that Nicolas had no privilege upon the property of Brown, because he was not employed by Brown, and had no contract with him. Raunis cannot, therefore, claim as subrogee of Nicolas. The contract was between Raunis and Brown, and the question is, whether a person thus supplying to another the services of a clerk, has a privilege under the article above mentioned.

The property of the debtor, says article 3150 of our code, is the common pledge of his creditors, and the.proceeds of its sale must be distributed among them ratably, unless there exist among the creditors some lawful causes' of preference. Privilege can be claimed only for those debts for which it is expressly granted in the code. Art. 3152.

Hence, it has become a familiar doctrine in our reports, as well as in the jurisprudence of France, that privileges are stricti juris, and that they are not to be extended from one case to another. The argument from analogy is not permitted in matters of privilege; for it would insensibly lead to the creation of a multitude of preferences, and consequently to abuse. As a learned commentator has properly observed, il n’appartient qu’au legislature, et non au juge, d’etablir des causes de preference, s’il le croit raisonable, parce qu’il n’appartient qu’á luí de sortir du droit commun.

Most of the claims which are mentioned in article 3158, are a class of claims which the lawgiver has thought proper to favor from considerations of humanity and public order. Servants and clerks who are protected by this article are a class of persons who are usually dependent for their support upon their wages or salaries. Because the law, acting upon these considerations, has thought proper to protect the salary of a clerk, we have no right to extend this protection to a person who, having employed this clerk, lets out his services to another. Daunis, not the clerk, is the creditor of Brown, and Daunis is not a clerk; he has, therefore, no privilege.

But the plaintiffs in execution are entitled to a preference, having acquired a privilege by the seizure under fieri facias. C. P. art. 722. As to the motion to dismiss this cause for want of jurisdiction, see Coll v. O’Callaghan, 2d Ann. 190 ; Hart v. Lodwick, 8 L. R. 167 ; Buckner v. Baker, 11 L. R. 462.

It is therefore decreed, that the judgment of the district court be reversed ; and that the opposition of Daunis be dismissed, he paying the costs of opposition in both courts.


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    Thomas Moran, Administrator, v. Simon P. LeBlanc.
    Where the defendant, being sued upon a promissory note, alleged that he had received notice from a third party that half the note belonged to him, and prayed that said third party, be cited to appear in the suit, the said third party cannot be prevented from appearing and filing an intervention, upon the ground that it came too late and would delay the progress of the cause.
    Where a party claims, in a petition of intervention filed in a suit on a promissory note, to have an interest of one-lialf in the note, his right to recover the same cannot be defeated by the exception that he ought to have sued for a Settlement of the partnership, when it does not appear there were any other partnership transactions to he settled.
    APPEAL from the District Court of Lafourche, Randall. J.
    </. L. Cole, for plaintiff.
    /. Cf. and A. Beatty, for defendant.
   The judgment of the court (Slidell, J. dissenting,) was pronounced by*

Preston, J.

The plaintiff brought this suit "Upon a promissory note for $1109 50 with interest, dated the 4th of May, 1849, and payable the 1st of March, 1850. The defendant filed an answer, alleging that he had been notified by James S. Kennedy that half the note belonged to him; and prayed that Kennedy might be cited» and that these claimants might be required to litigate between themselves as to their respective interest in the note, and that he might not be compelled to pay the same before the matter between them was decided. Kennedy immediately intervened and claimed half the note.

It is urged by the plaintiff, that the intervention should be dismissed, under article 391 of the Code of Practice, because filed too late, and when he was about to try the suit, which it delayed.

The district court thought otherwise, and under the circumstances decided correctly. The note was given for work done for the defendant by the plaintiff and intervenor in partership. The fears of the defendant, that he might be compelled to pay a second time, after the notification from the intervenor, were reasonable; and the court, on his application, would probably have directed Kennedy to be cited if he had not intervened, or allowed defendant to prove that he owed half the note to him; so that the intervention did not necessarily cause any delay. Besides, for the settlement of the estate of Ford, it was indispensable that the controversy between his administrator and Kennedy should be decided; and the intervention of the latter afforded an opportunity of having it settled, so as to enable the administrator to file an early and final tableau of distribution.

The testimony to establish that half'the note belonged to the intervenor, is of the kind with which courts have so often expressed their dissatisfaction — the proof of the declarations of a deceased man in the presence of none but the witnesses. But it is accompanied by the unquestionable fact, that the intervenor assisted in doing the work of the defendant for which the note was given to Ford, and renders it probable that he was in partnership with the plaintiff in executing the same.

If they were partners, it is said the suit should be for a settlement of the partnership, and not for half the note. But it does not appear by the pleadings, that there were any partnership transactions to be settled, except the division of the note in controversy.

The evidence in support of the charge of fraud against the intervenor, was not satisfactory to the district court; and it cannot reasonably be expected that we should give more weight to it than the district judge did.

But, in the answer to the intervention, the plaintiff claimed a sum of $300 from the intervenor. Two hundred dollars was proved by a promissory note for cash lent: the remaining hundred for accounts which it is proved Kennedy owed, and Ford paid for him, probably because he held the note in which Kennedy was interested. The claim is, moreover, proved by Kennedy’s acknowledgment, and, we think, should have been allowed in compensation of his demand, and all the controversies of the parties settled.

It is therefore decreed, that the judgment of the district court be reversed, and that the plaintiff recover from the defendant the sum of $840 80, with interest from the judicial demand; that the intervenor, James S. Kennedy, recover from the defendant $254 75, with interest from the filing of his intervention; that the costs of the original suit be paid by the defendant. The costs of the intervention to be paid by the administrator of Richard Ford; and the costs of this, appeal by the intervenor, James S Kennedy.


author: Siideul, J.

text:
    John A. Boykin et al. v. W. O’Hara.
    A power of attorney given by the owner of a plantation to an agent, setting forth that any arrangement or agreement made by the agent for the purpose of better securing any debt or debts already contracted and now held against the said property shall be considered binding againstit, does not authorize the agent to confess a judgment against the principal.
    APPEAL from the District Court of Terrebonne, Randall, J.

      Winchester Hall, for plaintiffs.

      J. C. and A. Beatty, for defendant.
   The judgment of the court was pronounced by

Siideul, J.

The appeal in this case is devolutive. It was granted upon motion in open court, and, by consent of parties, made returnable on the first Monday of January, 1851. The transcript was filed on the 20th of January, 1851; and on the 25th of January, an application was made in writing by O'Hara for the dismissal of the appeal. The first ground of the application is, that Lang and Lisette are not legally before this court, because no appeal bond in their favor was given by the appellant. Lang was the surety on the injunction bond, and was condemned, in solido, with Boykin, plaintiff in injunction, to pay damages to O'Hara. Lisette was the sheriff who made the seizure under fieri facias, which gave rise to the injunction; he was sued as a co-defendant with O'Hara, and damages were claimed from him personally for having made an unlawful seizure.

Lang, who must be considered as one of the parties who consented to the order of appeal, has waived any objection to the sufficiency of the appeal bond, by appearing in this court. If we consider Lisette as not before us, so far as he is individually concerned touching the claim for damages, still his absence does not prevent a review of the judgment of the district court as between Boykin and O’Hara. The objection, that the court below did not fix the amount of the bond for a devolutive appeal, is unsupported by the record. The amount of the bond was fixed in the consent order for a devolutive appeal. The remaining objections to the sufficiency of the surety on the appeal bond comes too late. See O’Reilly v. McLeod, 2d Ann. 138.

The facts material in the consideration of the merits of this case are as follows : John A. Boykin and Edward M. Boykin, residents of South Carolina, had a sugar plantation in this State. In December, 1848, Boyken gave O'Hara a draft, payable in the ensuing January, on Fellowes and Johnson, merchants at New Orleans, for $556 80, for mason work done on the plantation by him. On the 9th February, 1849, John A. and Edward M. Boykin executed in South Carolina a power of attorney of the following tenor: “ Know all men by these presents, that we the undersigned, John A. Boykin and Edward M. Boykin, have nominated, constituted and appointed, and by these presents do nominate, constitute and appoint Duncan McRéa Lq,ng, of Bayou Black, parish of Terrebonne, in the State of Louisiana, our true and lawful attorney; and that the said Duncan McRea Lang is fully authorized and empowered to perform all such acts as may be necessary for the proper management of the plantation and negroes of the said John A. and Edward M. Boykin, situate and being upon the Bayou Black, parish of Terrebonne, in the State of Louisiana; and we, the undersigned, do fully authorize the said Duncan McRea Lang to perform any act necessary for the well being and security of the said property, to wit, to contract any debts necessary for the support and use of the said plantation and negroes, and to draw drafts for any such necessary purposes, payable at such time and place as may seem most expedient to him, and to pay any such debts, and to meet any such draft, from any proceeds of said plantation as may be at any time in his hands ; and the undersigned do hold themselves bound by such act, as though they themselves had made it: hereby authorizing and approving any such act upon the part of the said Duncan McRea Lang, and any arrangement or agreement made by the said Duncan McRea Lang for the purpose of better securing any debt or debts already contracted, and now held against the said property for any such necessary purpose, shall be considered binding against it: hereby ratifying and confirming all our said attorney may do in pursuance of these premises. In witness whereof we have hereunto set our hands and affixed our seals this ninth of February, eighteen hundred and forty-nine.

(Signed) [l.s.] John A. Boykin. Edwaed M. Boykin.

Signed, sealed and delivered in the presence of

(Signed) Euwaed B. Laño. B. H. Matheson.”

In March, 1849, O'Hara brought suit against John A. Boykin upon this draft which had been protested for non-payment. Service of citation was acknowledged by Duncan Lang as his agent; and in the succeeding April, judgment was rendered against Boykin upon a confession by Lang, acting as agent under the power above mentioned. Upon this judgment a fien facias was issued ; and in December, 1849, a seizure was made of certain sugar and molasses, the product of the Boykin plantation; whereupon, Boykin brought an action to annul the judgment, and also obtained an injunction.

It is quite clear, that in the earlier portion of the instrument there is nothing which would in any degree sanction a confession of judgment. "We must look for the authority, if conferred at all, in the closing clause of the power, in which the principals say, “ any arrangement or agreement made by the said Duncan McRea Lang for the purpose of better securing any debt or debts already contracted, and now held against the said property for any such necessary purpose, shall be considered binding against it.” It is not very clear that the constituents intended more than to sanction agreements for security already made. But supposing the authorization to be prospective, the largest sense which the words will permit is, a power to secure debts by means of it on the plantation.

But the act done goes far beyond a mere mortgage of the plantation. A confession of judgment involves consequences of a much graver character. It puts in the hands of the judgment creditor the immediate means of obtaining a judicial mortgage of all the lands and slaves of the defendant in the judgment, and of effecting a judicial sale of all his property, real and personal. It is substantially, in view of its consequences, one of the highest acts of ownership known to the law, and is not to be implied from the delegation of a power to create a conventional mortgage, even supposing the latter power to be clearly conferred by the instrument. It is a familiar doctrine, that all written powers of attorney receive a strict interpretation, and the authority is never extended beyond what is given in terms or is clearly necessary for carrying the authority so given into effect. This rule, if not embodied expressly in the provisions of our Civil Code, is readily deducible from their spirit. It is impossible to deny that Boykin, who now has a judicial mortgage recorded against all his land and slaves, and a writ of fieri facias levied upon his personal property, is placed in a much more onerous position than if a specific portion of his real estate only were incumbered by a conventional mortgage. See Fuselier v. Robin, 4th Ann. 61, Barnes v. Profilet, 5 Ann. 117. Civil Code, arts. 2965, 2966, et seq.

It is therefore decreed, that the judgment of the district court, except so far only as it is in favor of Lisette in his individual capacity, be reversed; that the judgment rendered on the 19th April, 1849, in favor of the said O’Hara against the said Boykin, in the suit entitled W. O’Hara v. John A. Boykin, be annulled; that the injunction issued in this cause be perpetuated; and that the said O’Hara pay the costs of this suit in both courts. 1


text:
    R. C. Cammack v. M. H. Daunis.
    Where the father had made a sale of property before the death of the mother of minor children, but the title was not completed until after her death, he being bound in law to make the title, the children have no claim for such property as belonging to the community.
    The purchaser of property upon which there exists a tacit mortgage in favor of minors, of which he was not aware, and in consequence of which he apprehends an eviction, has a right to demand security against the danger of eviction before he can be compelled to pay the price. C. C. 2535.
    APPEAL from the District Court of Lafourche, Randall, J.

      Thibodeaux and Cole, for plaintiff.

      Winchester Hall, for defendant.
   The judgment of the court was pronounced by

Preston, J.

This suit is instituted upon two promissory notes given by the defendant for a tract of land situated in the parish of Terrebonne, and sold to him by Nathaniel D. Chamberlin, on the 12th of January, 1848.

The notes remained in the possession of the notary who passed the act of sale until the 30th of July, 1849, when they were taken possession of by the sheriff of the parish of Orleans, by virtue of an order of the Second District Court of New Orleans, as belonging to the succession of Chamberlin, the vendor of the land, he having departed this life. In the mean time they had been protested for non-payment, and are therefore held by the plaintiff subject to any equity between the vendor and vendee of the land for which they were given.

Chamberlin acquired the land from Edwards Ogden on the 1st of November, 1847. Ogden purchased it from Ludovick Tanner on the 31st of March, 1836. The wife of Ogden died in 1842. He opened her succession in the parish of Avoyelles, where they resided, and represented the land as belonging to the community of acquets which had existed between them.

In 1848, Ogden, as tutor of the minor heirs of his deceased wife, presented a petition to the district court for the parish, declaring that the community of acquets between him and her, was at her death, and was then insolvent, and prayed that a family meeting of the minors might be convened to give their advice and opinion as to the necessity of renouncing it on behalf of the minors. The family meeting gave their advice that it was for the interest of the minors to renounce the community. Their proceedings were approved and homologated by judgment, and the father and tutor authorized to make the renunciation. He neglected to do it formally, as required by article 1010 of the code before a notary and two witnesses.

He had, however, already sold the property out of which this controversy arises to Chamberlin in 1847, as has been stated. And we think these proceedings divest the minors of all equitable interest in the property ; for equity considers that done which ought to have been done. Besides, Ogden can make the formal act of renunciation at any time, and if, which is not to be supposed, he should refuse, the owners of the property can compel him to do so by suit, or obtain judgment perfecting their title.

The defendant, however, presents a more serious difficulty in opposition to the payment of his notes without security against eviction. He avers that there exists a tacit general mortgage on the tract of land conveyed to him in favor of the minor children of Edwards Ogden, a former proprietor of the land, for a sum of near twenty thousand dollars, and that he has great reason to fear that he will be evicted of the premises by virtue of that incumbrance.

It is rendered certain by the record, that the minor children of Edwards Ogden held property separate from their father. In 1843, he purchased a plantation and slaves for them, and, in 1844, made an arrangement to receive ten thousand dollars inherited from their grand-mother. For the faithful administration and restoration of their property, they have a tacit legal mortgage upon the real property he has owned since he became tutor of his children. The property sold by him to Chamberlin, and by Chamberlin to the defendant, is subject to this legal mortgage. Although it belonged to an insolvent community of acquets, to be renounced on behalf of the children, nothing shows that the creditors of the community have priority over the children as creditors of their father and tutor. They are equally creditors of the father individually, to whom the whole property belonged in consequence of divesting the interest of the children in the community of acquets. Until, therefore, Ogden settles with his children, or gives a special mortgage to secure their rights in lieu and extinguishment of the general tacit mortgage in their favor, the defendant is liable to be evicted of the property for which the notes sued upon were given by virtue of the legal mortgage in favor of Ogden’s minor children. The defendant has just reason to fear this eviction, and under article 2535 of the Civil Code, is entitled to security against it before paying his notes.

It is therefore decreed, that the judgment of the district court be amended by adding that the plaintiff shall not take out execution on the same until he gives to the defendant good and solvent security in the amount of the judgment, exclusive of interest, conditioned that he shall refund that amount to the defendant in case he should be evicted of the property for which the notes were given by virtue of the legal mortgage in favor of the minor children of Edwards Ogden, or until their legal mortgage be cancelled; and that the plaintiff pay the costs of this appeal.


author: Pkeston, J.

text:
    Paul Pousson v. Widow Porche.
    The right of expropriating a right of way over aneighbor’s property should never be allowed, except in case of extreme necessity; and where a party can make a road on his land leading to the public road he should be required to do so. C. C. 695.
    APPEAL from the District Court of Pointe Coupee, Burle, J.

      G, S. Lacey, for appellant,

      J. M. Brunol, for appellee.
   The judgment of the court, was pronounced by

Pkeston, J.

The plaintiff alleges, that he is the owner of a tract of land, which he cultivates as a cotton plantation, in the rear of the plantations fronting upon Fausse river; that he cannot pass to the public road on that river without passing over one of the front plantations; that there is a private road on the upper part of the defendant’s plantation, which the proprietors in the rear have used for thirty years, and that there is no other place in the neighborhood by which his plantation is surrounded, by which he can pass and repass to the public road. He alleges that she has forbidden him to pass through her road : he claims the right of doing so, and enjoins her from obstructing him.

The plaintiff has not made out a clear case for relief, under articles 695 and 696 of our Civil Code, even at the institution of liis suit. But, since its institutisn, he has purchased from Euphrosine Robellard, Widow Olinde, a tract of land fronting on the public road, on Fausse river, which affords him a shorter route to the public road through his own land than over that of the defendant.

The plaintiff, however, contends and proves, that it would be very expensive and inconvenient to make a passable road over his own property : still, as it is possible, he should be required to do so, and pass that way. The right of passing over the defendant’s property, is the forced expropriation of a participation in what belongs exclusively to her. This should never be done except in cases of extreme necessity. Toullier says so, expressly; and adds, that the inconvenience of passing over one’s own property, though extreme, will not be a sufficient reason for forcing a neighbor to yield a passage over his. And the Court of Appeals of Lyons, in considering the article of the Napoleon Code corresponding with article 695 of our code, recommended that the right of passage to a public road, accorded to a farm, enclosed by others, should be suppressed, if the enclosed farm should subsequently be united to one bounded by the public road. These circumstances, precisely, have occurred in the present case.

A case might occur in which the expense and inconvenience of making a passage over one’s own land, would be so great, compared with the inconvenience to a neighbor of a passage over his, as to induce the courts to except it from the principles inculcated by Toullier and the Court of Appeals of Lyons. But a case so extreme is not presented by the plaintiff. And it is not necessary to consider the case put by Duranton, vol. 5, p. 435, of a right of passage established by judgment, as it does not exist in the present case.

The judgment of the district court is therefore affirmed, with costs.


author: Eustis, C. J..

text:
    Moran and White v. Celeste Tanner.
    The defendant should be allowed to file an answer pleading the general denial even after the plaintiff has moved to confirm a judgment by default, if it produces no delay in the trial of the cause. C. P. 314.
    APPEAL from the District Court of Terrebonne, Randall, J.

      J. C. and A. Beatty, for plaiutiffs.

      J. L. Cole, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J..

It appears by the certificate of the district judge, that the plaintiffs having taken a judgment by default against the defendant, the case was taken up; and the plaintiffs having introduced a portion of their evidence to confirm the judgment, the defendant’s attorney then appeared and offered to file an answer, which was objected to by the counsel for the plaintiffs, as coming too late. The district judge sustained the objection, and refused to permit the defendant’s answer to be filed, and proceeded to confirm the judgment by default.

The defendant took his bill of exceptions, and has appealed from the judgment rendered against him. The article 314 of the Code of Practice provides, that if the defendant, on the very day when a definitive judgment was to have been rendered against him, appears and files his answer, the first judgment taken shall be set aside.

We think that, as the defendant did not ask for any delay in the trial of the cause, and, in fact, merely pleaded the general issue, the judge ought to have permitted the answer to be filed. No injury could have been worked to the plaintiffs by the cause having been put at issue by the defence. The article of the code seems to us, under the circumstances, to have been obligatory on the court.

The judgment of the district court is therefore reversed, and the case remanded for further proceedings; the appellee paying the costs of this appeal.


author: Seidell, J.

text:
    J. A. Boykin v. B. F. Holden.
    Where a party repudiates the authority of an attorney at law to have acted for him, it is necessary that it should be supported by his own oath, and not that of an agent.
    APPEAL from the District Court of Terrebonne, Randall, J.

      Winchester Hall, for plaintiff.

      C. Belcher, for defendant.
   The judgment of the court was pronounced by

Seidell, J.

The plaintiff has enjoined the execution of a judgment obtained against him by Holden, alleging that he was not cited, nor did he make any appearance in the cause, and that the attorney who appeared for him, and confessed judgment, had no authority to do so.

Although Boykin alleges himself in the petition to be a resident of Terrebonne, and his presence in that parish at the time of bringing this suit may, in the absence of evidence to the contrary, be fairly inferred from the fact that the injunction bond is signed by him; yet he has not sworn to the truth of the matters alleged in the petition.' The oath is taken by his attorney at law, to the best of his knowledge and belief. In repudiating the appearance made for him in the ease of Holden v. Boykin, by an attorney at law, it was his duty to support his assertion by his own oath. Ingram v. Richardson, 2d Ann. 840. Conrey v. Brenham, 1st Ann. 397. Hill v. Bowden, 3d Ann. 258.

We need not decide whether the presumption in favor of the authority of an attorney at Jaw to represent a party in a judicial proceeding extends to a confession of judgment. It is enough that we are permitted to presume his authority to make an appearance; for, in the present case, the judge did not act upon the mere confession of the attorney. Testimony was heard at the trial, and the judgment of the court recites that the plaintiff had “ proved the facts stated in his petition.”

There is in the record an affidavit of Boykin, and a bill of exceptions to the opinion of the district judge, refusing to admit it in evidence. It does not appear from the bill of exceptions that the document was offered at the trial of the cause; and there are other circumstances of irregularity, which make it questionable, at least, whether the bill of exceptions should be noticed. But it is sufficient to say, that the affidavit referred to in the bill is loose and unsatisfactory. It does not say in what cause, or on what occasion it was that the attorney at law had represented him without his authority.

The judgment of the district court is therefore affirmed, with costs.


text:
    A. S. McComas v. A. M. Green and Husband.
    A married woman cannot renounce prescription when once acquired without the authorization of her husband. C. C. 3425.
    APPEAL from the District Court of Concordia, Selby, J.

      Stacey and Sparrow, for plaintiff.

      R. N. Ogden, for defendants.
   The judgment of the court was pronounced by

Rost, J.

On the 8th of January, 1848, the defendant, Amanda M. Green, who has been a married woman since 1839, subscribed the following note: “ On the first day of January next, I promise to pay to Alexander Thompson, or order, the sum of seven hundred dollars; this sum being due to him for services as overseer for my benefit for the year 1841. (Signed) A. M. Green.” This note was transferred by endorsement to the plaintiff, who now seeks to recover the amount of it from the maker. The husband of the defendant has been made a party defendant for the regularity of the proceeding.

« The defence is, that Thompson had been fully paid for his services ns overseer, and that the note was given without consideration. That the services of Thompson did not inure to the benefit of the defendant; and that her acknowledgment that they did, having been made without the authorization of her husband, is not binding upon her. That the action of Thompson for his services as overseer for the year 3841 was barred by prescription at the close of the year 1844, arid that the defendant could not, without the authorization of her husband, renounce the prescription acquired and enter into a new obligation for the same debt.

The jury before whom the case was tried, influenced by the strong equity of the plaintiff’s claim, rendered a verdict in his favor;'and the case is before us on the appeal of the defendant from the judgment rendered on this verdict. During the trial, the defendant took a bill of exceptions to the opinion of the judge admitting Laughlin as a witness. It was ascertained in the examination of this witness that he had a direct interest in the event of the suit. He was therefore incompetent, and his testimony should have been withheld from the jury. The judge admitted it, under the impression tiiat it proved nothing more than the consideration expressed on the face of the note. As the truth of the consideration was put at issue, Laughlin was incompetent to prove it. But besides proving the consideration, he went on to say that the note sued upon had been given in renewal of another. This'fact had a most important bearing on the question of prescription. It hns been urged that the note was received by the plaintiff before maturity and in the usual course of business, and that he cannot be affected by the want .of authority of the defendant. The record does not show when the note was transferred to the plaintiff. But if the facts should be as stated by her, this ground of defence would be untenable. Parties are presumed to know the situation of those whose paper they take. The plaintiff knew the maker of the note to be a married woman. This knowledge was sufficient to put prudent men upon inquiry whether it had been subscribed in a case in which the authority of the husband might be dispensed with. DeGaalon v. Matherne, 5th Ann. 495.

Had the' note been given before the action of Thompson for his wages was barred by prescription, the principle upon which the case of Dickinson et al v. Reagan was decided might, perhaps have been successfully invoked. 2d Ann. 440. But under art. 3503, C. C., the plaintiff’s action had been prescribed nearly four years when the note sued upon was given; and the most important question in the case is, whether the defendant could, without the authorization of her husband, renounce the prescription thus acquired, and enter into a new obligation to pay the prescribed debt. To be capable of renouncing prescription when once acquired, one must be capable of alienating his property. C. C. 3425. And as the defendant could not, without authorization, alienate her property, it necessarily follows that the renunciation is not binding upon her, and that she may still avail herself of the plea of prescription. That plea is decisive of the case. However discreditable the case may be, it is valid in law, and we must sustain it.

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